List of access keys

PCO Quarterly

The PCO's quarterly newsletter for instructing departments

The PCO Quarterly is intended for anyone involved in instructing the PCO.

To be added to the mailing list, please contact us giving your name, designation, agency, email address, and phone number.

Highlights from the PCO Quarterly:

September 2016
July 2016
May 2016
December 2015
September 2015
July 2015
March 2015
December 2014
September 2014
June 2014
March 2014
December 2013
September 2013
June 2013
March 2013
December 2012
July 2012
July 2011
September 2010

Back to top

September 2016: LDAC Annual Report and upcoming seminars

The Legislation Design and Advisory Committee (LDAC) Annual Report for the year ending 30 June 2016 is available on the LDAC website. The Annual Report will be of particular interest for those who are likely to have legislative proposals referred to the committee in legislation bids for the 2017 legislation programme.

This is the committee’s first Annual Report since it was established in June 2015. The report covers the committee’s activities for the year, including its work with departments on legislative proposals before introduction, education and training, maintenance of the LAC Guidelines (2014 edition), and submissions by the External Subcommittee on Bills after introduction. It also includes the committee’s reflections on common themes and issues arising in legislative proposals, and outlines its major projects for the next year.

The committee has planned two more workshops for the remainder of 2016:

  • 14 October, 2 pm–3.30 pm and 19 October 1 pm–2.30 pm—a two-part workshop about empowering provisions that authorise delegated legislation to amend, override, or suspend primary legislation. The first session will be a panel discussion of recent case studies with Professor Geoff McLay (VUW), Liesle Theron (NZLS Law Reform Committee), and Kelly Harris (Office of the Clerk). The second session will involve sharing reflections on the panel discussion and a practical exercise on these kinds of empowering provisions.
  • November—a seminar to help officials prepare for 2017, including reflections on the committee’s work and learnings to date, advice about what proposals should come to the committee, and what to include in legislation bids. This seminar will be helpful for those who are preparing legislation bids for 2017 or are likely to engage with the committee next year.

The committee will write to departments asking them to nominate officials to attend the seminars. Further details about the November seminar will be available in due course.

Back to top

September 2016: Seminar for new instructors: register your interest

The PCO will hold its regular seminar for new instructors, Policy to Legislation, on 23 November 2016.

Contact us to register your interest. Registrations will close on 18 November or when all places are taken, which ever comes sooner.

And remember that we are happy to provide tailor-made seminars to individual departments. Contact us to arrange this.

Back to top

July 2016: Editorial: Death, taxes and change

Fiona Leonard

Fiona Leonard

Everyone will know the old saying: there are two certainties in life, death and taxes. I would also add a third­—change. For example, take access to legislation. Ten years ago, access meant getting all primary and secondary legislation drafted by the PCO online and officialised. Done. Now there is a need for the online legislation to be responsive to hand-held devices, something that wasn’t envisaged a few years ago.

For the present, however, there is clearly a pressing need for easy access to all legislation, regardless of who drafts it or how it is made or published. This has been highlighted in a number of reports including the Regulations Review Committee Inquiry into the oversight of disallowable instruments that are not legislative instruments (sometimes referred to as DINLIs). The Government response to this report on 9 December 2014 included a direction to the PCO to explore an amendment to the Legislation Act for the provision of a register of DINLIs based on the Australian Commonwealth model, reflecting a similar Cabinet decision from 5 March 2014.

The result was the establishment by PCO of the Access to Subordinate Instruments Project (ASIP). The overall objective of this project is to improve access to legislation by publishing all subordinate instruments on the New Zealand Legislation website. ASIP aims to provide a single, comprehensive, official, public source of New Zealand legislation.

This project is an important all-of-Government change, and a big task. Preliminary investigations initially indicated 68 agencies with delegated legislation-making powers. That number has now climbed to 107 agencies. The PCO is committed to delivering a solution that reflects the needs of these agencies. There will, however, be some trade-offs given the number of agencies involved.

ASIP is now in its formal establishment stage and the PCO is currently developing a business case with a view to putting up a Cabinet Paper by the end of 2016. In recent weeks the ASIP team, led by Richard Wallace, has contacted your Chief Legal Adviser or equivalent to get key contacts from your organisation, and has invited them to attend a presentation on ASIP. Following the presentation, the ASIP team will be seeking feedback on your agency’s current processes and systems for making subordinate instruments. See below for more details.

We look forward to working with you to further the project. We are confident this change will ultimately benefit all agencies who are required to draft and administer subordinate instruments. It will also assist public sector chief executives to fulfil their responsibilities for the stewardship of the legislation administered by their department or agency. Finally, it will be of benefit to everyone, as they will be able to readily access their legal rights and obligations.

Fiona Leonard
Chief Parliamentary Counsel

Back to top

July 2016: Presenting Other Instruments to the House

All disallowable instruments (see section 38 of the Legislation Act 2012) must be presented to the House of Representatives no later than the 16th sitting day after the day on which they were made. This enables scrutiny by the Regulations Review Committee to take place.
Disallowable instruments are either Legislative Instruments (which are drafted by the PCO) or “Other Instruments” (which are drafted by another agency, eg a government department).

Agencies’ responsibility for tabling Other Instruments

If an instrument is not drafted by the PCO, it is the agency’s responsibility to arrange for its presentation to the House. This can be done on any working day, irrespective of whether the House is sitting (excluding the period from 25 December to 15 January).
The Office of the Clerk has created a list of steps to help agencies present their instruments to the House of Representatives within the required time frame:

  • the agency makes two hard copies of the instrument
  • the agency sends the copies to the responsible Minister’s office
  • the Minister’s office staff follow the procedure established in their office for handling the copies
  • the Minister’s office staff give the Bills Office approval to present the instrument
  • the agency delivers 10 copies to the Office of the Clerk (Attention: Bills Office) on the morning of the day on which the instrument is due to be presented to the House
  • the Bills Office manages the presentation of the instrument to the House.

Please note that the agency’s responsibility to present does not end with sending copies of the instrument to the responsible Minister’s office. The agency may need to proactively engage with the office to ensure that the instrument is presented within the required time frame.

If you have any questions about the process, please contact the Bills Office: phone 04 817 9437, email See the Parliament website for more about presenting papers to the House.

Other Instruments on the New Zealand Legislation website

The NZ Legislation website sets out Legislative Instruments (eg regulations) in full. Other Instruments are provided by linking to the agency’s website or the Gazette.

To maintain these links, the PCO contacts agencies every month asking for information about new and revoked instruments. Please contact us if you find the links are not up to date. See also Notifying Other Instruments to the PCO.

Back to top 

July 2016: Drafting Services Survey

Thanks to everyone who took part in this year’s Drafting Services Survey. This year’s results are very pleasing. They go towards the PCO’s performance measures, and also help identify any gaps in the service we offer.

The standards that the survey contributes to are:

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 measure is 90%. We received a rating of 97%.

The timeliness standard is that:

  • drafts of legislation are produced within agreed deadlines.

The measure is 90%. We received a rating of 98%.

The survey response rate was 68.0%.

For comparison, the results from previous years are:

2015 quality 97%, timeliness 99%, response rate 58%
2014 quality 98%, timeliness 96%, response rate 51%
2013 quality 93%, timeliness 93%, response rate 53%

Back to top

May 2016: Editorial: Looking forward—and welcome to Fiona Leonard as Chief Parliamentary Counsel

Having given my fair share of “departing CPC reflections” presentations, and having cleared my office in the Reserve Bank building, both to allow Fiona to move in and then to make way for the refit of our 12th and 13th floors, has provided me with a rich source of material about the past. But I want to look forward in this editorial—both to welcome Fiona and to encourage you all to provide her with the support and assistance you have to me over the last eight-and-a-half years—and to look at some of the challenges and opportunities coming up.

The PCO has changed quite fundamentally since 2007: we are now a very substantial drafting and publishing office with a huge public presence in the form of That public presence will continue to drive demands for change in the way we both provide access to legislation and, inevitably, draft that legislation. We have already responded to some of those demands with the launch of the Access to Subordinate Instruments Project (ASIP) led by Richard Wallace and the soon to be appointed Deputy CPC (Access). This will truly make all NZ current legislation available to everyone (including Parliament).

Similarly, building upon the first revision law programme that is now underway with the imminent introduction of the Contract and Commercial Law Bill (a fantastic joint project between the PCO and MBIE), the PCO is also about to take on a new approach (agreed with the central agencies), jointly with Departmental Chief Executives, to better deliver real and effective stewardship of the statute book.

Developments in drafting of, and access to, legislation include beginning to tackle the challenges of dual (multi?) language drafting and publishing, a refresh of the PCO’s commitment to plain language and clearly structured legislation (at all levels), continuation and possible growth of the much appreciated Pacific Island drafting resource, and delivering on our statutory role to advise on and assist with the drafting of legislation that we are not responsible for drafting.

There has been much discussion—both here in New Zealand and elsewhere—about The Future of the Professions by Richard and Daniel Susskind.1 You don’t need to subscribe to the full apocalyptic theory—the gradual replacement of professionals by increasingly capable systems—to recognise that change in our world will affect the way in which all of us work, whether instructing the PCO or working for the PCO (and indeed whether the work we currently do will be required in its current format, or at all, in the future).

We need to look outward and forward, both as a profession and as part of the New Zealand State Sector, to ensure that we remain relevant, and the service that we provide is both efficient and effective. Crucially, that service must be what is needed and must respond to the changing demands of society and the institutions of government and the public that we serve, the executive, parliament, the judiciary, and the citizens of New Zealand—who will also be changing the way they want to access, read, understand, and apply legislation.

Exciting times ahead—especially for those willing and capable of adapting to the changes that technology and society will make.

All the very best for the future and many thanks for the past eight-and-a-half years.

David Noble
6 May 2016 The Future of the Professions: How Technology Will Transform the Work of Human Experts—22 Oct 2015 Oxford University Press

Christopher Finlayson, Fiona Leonard, David Noble

The Attorney-General Christopher Finlayson visiting the PCO in April to announce that Fiona Leonard would be the next Chief Parliamentary Counsel.

David Noble stepped down as Chief Parliamentary Counsel on 6 May, and Fiona Leonard took over the role the following day. David Noble has been appointed a temporary Special Parliamentary Counsel.

Back to top

Commencement date—calculation of monthly periods

There have been a number of queries over the years relating to the commencement of sections of an Act where the commencement date is expressed as being a specified number of months after the date of Royal assent. The PCO’s long-standing practice is to draft on the basis of “the corresponding date rule”. This is a general rule established in case law that can be applied to determine when a month starts and ends.

The corresponding date rule operates so that “a calendar month ends at midnight on the day in the ensuing month immediately preceding the day numerically corresponding to the commencing date” (Police v Maindonald [1971] NZLR 417 (SC)). This rule is applied in conjunction with rules in the Interpretation Act 1999.

An easy way of understanding the application of the rule is to exclude the date on which the Act received the Royal assent. So, if your Act was assented to on 1 January 2016 and certain sections were expressed as coming into force six months after the date of assent, those sections would come into force on 1 July 2016. This means “at the start” of 1 July 2016.

Back to top

May 2016: Dual-language drafting: an innovation in the statute book

te ture mo te reo maori 2016With Royal assent now given for Te Ture mō Te Reo Māori/the Māori Language Act 2016, it is timely to reflect on the process by which this has occurred and some of the implications of this historic development.

This is, as far as research has been able to take us, the first enactment in both Māori and English of an Act reflecting and giving effect to Government administrative policy. There is a long history of the proceedings of Parliament being able to be conducted in both English and Māori, and of some Bills being prepared in Māori as well as in English to assist the Māori members to be able to participate in the debates on Bills of particular relevance to Māori. These were published as pamphlets. However, none seems to have been enacted in the Māori language, and these initiatives were, it seems, defunct by about 1900. The Māori Language Act 1987 was not, ultimately, enacted in both languages. Even though it was introduced as a dual-language Bill, that Bill was enacted in English only. A translation was subsequently published in the annual volumes of statutes by direction of the Attorney-General. That translation, not having been enacted, did not have official status.

Thus the first bilingual statute on the New Zealand statute book was the Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013, Te Ture mō Mokomoko (Hei Whakahoki i te Ihi, te Mana, me te Rangatiratanga) 2013. That Act gave statutory recognition to the free pardon that had been granted to Mokomoko by the Governor-General in 1992 in the exercise of the Royal prerogative of mercy. The proposal that the Bill be enacted as a dual-language Bill was only raised at the select committee stage. As the Bill was promulgated in response to the grievances of a whanau over a historical event, the whanau took responsibility for the translation that was added to the Bill when reported back to the House by the select committee.

The Bill to replace the Māori Language Act 1987 was introduced as an English language Bill in 2014. Before the Māori Affairs Select Committee, submissions on the Bill called for it to be enacted in both Māori and English, two of the official languages of New Zealand. This innovation was directed by the select committee, accepted by the Minister, and approved by Cabinet. The PCO and Te Puni Kōkiri then set about to develop a methodology for the translation and publication of the Bill, within the time frame for reporting the Bill back, which was extended by a further period of two months after the select committee had considered the English version of the revision tracked Bill.

The PCO had to provide for the publication of both versions of the Bill in a comprehensible format, allowing as far as possible that a reader could read through the whole Bill in either language. The PCO does not have a facing-page or two-column format available to it, as is the case in some other countries where statutes are enacted and published in dual-language form, such as Canada, Wales, and the Republic of Ireland.

Te Puni Kōkiri had the responsibility of providing for the translation of the Bill. A robust translation methodology had to be set up, as the Bill would have to be certified independently as a true and accurate translation of the English text of the Bill.

In addition, the standard of the translation had to support an interpretation clause that reads:

12    Interpretation of Act generally
(1)    The Māori and English versions of this Act are to be interpreted in a manner that best furthers the purpose of the Act and the principles set out in section 8.
(2)    The Māori and English versions of this Act are of equal authority, but in the event of a conflict in meaning between the 2 versions, the Māori version prevails.

Given that clause, the accuracy of the translation was of particular importance. The translator engaged by Te Puni Kōkiri is a certified interpreter and translator under the Māori Language Act 1987, has provided interpreter services in courts of law, is a national moderator (Māori) for NZQA unit standards, has lectured in te reo Māori at Victoria University of Wellington, and has undertaken many translation and quality assurance assignments for a range of public and private sector organisations. The translation of legislation was a new context for the translator.

In addition, a team of three independent legal and linguistic experts (“jurilinguists”) was appointed to assist the translator with the legal implications of the draft Bill. Finally the Bill was subject to the scrutiny of a further two linguistic experts certified as translators and interpreters under the Māori Language Act 1987. The PCO undertook the usual quality assurance measures on the English version of the Bill and, to the extent possible, the technical elements of the Bill as a whole. In addition, because the PCO does not have counsel sufficiently versed in te reo Māori, it engaged an independent jurilinguist to undertake peer review of the Māori version in compliance with the requirement for all Bills to be peer reviewed. This scrutiny involved the exchange of views and some adjustments before the Bill was ready to report back. The translator and Te Puni Kōkiri linguistic experts continued to scrutinise the Māori version. A modest supplementary Order Paper was required to clarify the English version and change certain elements of the translation. Though further changes required a recommittal of the Bill immediately before its third reading, the Bill was read a third time as scheduled on 14 April 2016.

Te Puni Kōkiri and the PCO are both aware of refinements needed to this process. Feedback from the translator and the jurilinguists indicates that it would have been helpful for them to have had involvement earlier in the process of drafting the Bill in English. Some English-language drafting techniques set up difficulties for a translator or do not work well in translation. In some respects, the English version could probably have been refined to avoid those linguistic difficulties. The vocabulary available to the translator is narrower than that available to the English drafter. Again, discussion at the development stage may have been able to avoid some difficulties.

The issues encountered in the production of this dual-language Act indicate the need for work to be done on a number of fronts to focus our minds on elements of the process that need refinement and development. The question of the time that must be allowed for a translation to be produced is another matter with significant implications for the overall process. Multi-lingual jurisdictions with years of experience comment on the significance of having adequate time to produce a fit-for-purpose translation. The PCO is involved in on-going work on the language of law being undertaken in the Law Faculty of Victoria University while Te Puni Kōkiri is considering the policy implications of legislation in dual-language form, as part of its overall Māori Language Strategy programme.

Back to top

May 2016: Bill of Rights vetting

The Ministry of Justice supports the Attorney-General by providing advice about the consistency of all Bills with the New Zealand Bill of Rights Act 1990 (BORA), except for appropriation Bills and Bills in the name of the Minister of Justice (including Courts and Treaty Negotiations). Advice on Justice Bills is provided by Crown Law to avoid a conflict of interest for the Ministry of Justice.

The primary purpose of BORA vetting is to support the role of the Attorney-General under section 7 of BORA and Standing Order 265. Section 7 requires the Attorney-General to bring to the attention of the House of Representatives any provision in a Bill that appears to be inconsistent with any of the rights and freedoms affirmed in BORA.

BORA vetting promotes higher quality, human rights compliant legislation by encouraging government agencies to develop draft legislation that is consistent with fundamental rights and freedoms. The Ministry can assist government agencies to identify potential limitations and either avoid those limitations or explain why the limitation can be justified under section 5 of BORA. BORA vetting also helps to inform Parliament and the public about significant human rights issues in Bills.

In accordance with the CabGuide, we require a final version of the Bill two weeks before LEG.

We really appreciate agencies’ efforts to meet this deadline, and are happy to liaise at a much earlier stage in advance of the required two weeks. Please feel free to contact the BORA Coordinator to discuss.

Since 2003, BORA advice on specific legislation has been published on the Ministry website so that select committees and members of the public may refer to it during the passage of the Bill through the House. See page 9 for how to locate these reports and other resources.

For more information about any BORA issues that you may be faced with as part of your policy development work, please feel free to contact the BORA vetting team through

Back to top

December 2015: Christmas greetings from the Solomon Islands

I am writing this from the 34th annual PILON (Pacific Law Officers Network) meeting which PCO has attended as an Observer for four years, reflecting our commitment to providing a “Pacific Drafting Desk” funded in part by a grant from MFAT. We have just received the report of an independent assessment of this service done for MFAT which has confirmed the benefits which it is delivering in the region—confirmed by the requests for further assistance and complimentary comments about our service at this meeting in Honiara.

This is perhaps the most visible example of our “outreach” work, but we have been developing this further within New Zealand also. Our recently published Strategic Directions indicates that we will be developing our training offering (direct to instructing departments, via the GLN introductory course, and now through our participation in the Legislation Design and Advisory Committee which will be offering further education and training in developing good legislation).

Also in relation to the coming year we will be taking the design phase of the Access to Subordinate Instruments Project forward with MPI and other colleagues. This project, our most significant since the launch of the NZ Legislation website in 2008, has the potential to significantly improve and simplify both the publication of and access to all New Zealand legislation through a single searchable database and web portal.

Finally, as the end of the year approaches I should like to thank all instructing agencies for following the guidance issued last year on the legislative bid process, and to hope that you all do the same with the slightly revised guidance in the latest Cabinet Office Circular for the 2016 programme (CO (15) 6; see also below). Please also discuss your department and agency bids at an early stage with PCO.

I wish all our readers a very happy holiday and a safe start to the new year.

David Noble
Chief Parliamentary Counsel

Back to top

December 2015: 2016 Legislation Programme: Requirements for submitting bids

Government Bills are managed through an annual Legislation Programme. To include a Bill in the 2016 Legislation Programme, a “bid” is required. Cabinet Office Circular CO (15) 6 sets out the process.

Bids must be received by the Legislation Coordinator in the Cabinet Office by 10am on 29 January 2016.

Bids are required for all Bills, whether new, being drafted, or already before the House or select committee.

New Bills can be added to the Legislation Programme during 2016, but it is preferable to include them at the beginning of the year.


A realistic timetable for new Bills must have been agreed with the PCO. The circular encourages departments to seek advice from the PCO to establish size, complexity, and time frame for a Bill. Timetabling for all Bills should include allowance for PCO drafting, Legislation Design and Advisory Committee (LDAC) advice, and consultation with departments and the public (if an exposure draft is to be released).

If priority is sought for a new Bill to be passed in 2016, the PCO will usually need to receive instructions as soon as possible in the first quarter of 2016. If priority is sought for a new Bill to be introduced in 2016, the PCO will usually need to receive instructions in the second quarter of 2016.


If a Bill will require associated regulations, the bid should include a description of their nature and extent. Drafting instructions for regulations should be provided to the PCO before the Bill proceeds to committee of the whole (unless the regulations are not necessary for the commencement of the Bill or can be made more than 12 months after commencement).

LDAC advice

A new requirement this year is to factor LDAC advice into the timetable for a Bill, or explain why it will not be sought. The expectation is that LDAC assistance will be sought when legislative proposals and drafting instructions are being prepared.

PCO help available

The PCO drafting team managers are always ready to assist with identifying the size and complexity of a Bill, and with establishing a realistic timetable.

See Cabinet Office Circular CO (15) 6 for full information about the requirements for preparing bids.

Back to top

December 2015: General policy statements: timetable reminder

The general policy statement, which sets out the general policy of the Bill, should be provided to the PCO as soon as it is in final form but a minimum of two weeks before the Bill goes to LEG.

In practice, this means providing the general policy statement in time for PCO to incorporate it into the Bill before departmental consultation begins. It is important in the consultation process as it allows readers to understand the Bill in the context of the policy that the provisions are trying to implement.

Back to top

December 2015: Reduced use of break-up SOPs

A break-up SOP is one that divides a Bill into two or more separate Bills. Break-up SOPs have often been used in the past to split an omnibus Bill into separate Bills that are then enacted as separate Acts.

We are changing our practice, in that omnibus Bills will no longer be divided as a matter of course. (However, Statutes Amendment Bills will at present continue to be divided.)

The use of break-up SOPs was largely to make it easier to access amendments in a paper-based world. For example, someone needing an up-to-date Act could buy a copy of the Act plus all of its separate amending Acts. But access is now primarily online, and amendments are incorporated when they come into force, so there is no longer the same need to divide Bills. It now makes more sense for a package of amendments to be kept together under a single title throughout its progress through the House, rather than splitting it into multiple Bills (and then multiple Acts) with different names.

If there is good reason to divide a Bill—such as where the Bill involves a new principal Act and amendments to other Acts—a break-up SOP will be used. Drafters will advise on the best approach for particular Bills.

Back to top

December 2015: Departmental disclosure statements: reminder to use template

When preparing a departmental disclosure statement, please remember each time to download the template from the Treasury website and to check the guidance material.

In particular do not amend a previous disclosure statement. Downloading the template from the Treasury website will ensure that the latest version of the template is used and that all subsidiary questions and instructions (which may have been deleted from the previous disclosure statement) are available to the person preparing the disclosure statement.

In addition, please do not vary the template formatting because doing so may cause problems when the statement in Word format is converted into HTML for publication on the Disclosure Statement website (

Back to top

December 2015: New framework for instruments that require confirmation

A new framework for confirmable instruments will be in place from 1 January 2016.

Some Acts enable subordinate instruments to be made, but specify that those instruments lapse at a deadline unless earlier confirmed by an Act of Parliament. Confirmation of such instruments is usually done by the annual Subordinate Legislation (Confirmation) Act.

The Legislation (Confirmable Instruments) Amendment Act 2015 will replace complex confirmation provisions in over 30 Acts with one standard set of provisions.  These new provisions will be set out in a new subpart 1A of Part 3 of the Legislation Act 2012, which will come into force on 1 January 2016.  The new provisions update  the current confirmation procedures and make them more workable.

Each Act that enables a subordinate instrument that requires confirmation to be made will cross-refer to the new standard provisions in the Legislation Act and set out the explanatory note requirements that must be met for a confirmable instrument.

The PCO’s drafting team managers are happy to discuss with instructors:

  • whether to, and then when and how to, make an instrument a confirmable instrument
  • how to meet the new explanatory note requirements for a confirmable instrument.

Please continue to advise the PCO when you have subordinate legislation that needs to be confirmed by an Act. This  will help the PCO coordinator of the annual Subordinate Legislation (Confirmation) Bill to assemble the Bill.

Back to top

December 2015: Orders in Council: new wording in enacting statement block

From 1 January 2016 onwards, there will be a small change to the wording of legislative instruments that are made at Executive Council, to enable more flexibility as to whether the instrument is signed by the Governor-General or by the Administrator of the Government.

The main change that you may notice is that the enacting statement block will no longer use the words:

Pursuant to section xx of the xx Act, … the Governor-General makes the following order …

Instead, the block will start with the words:

This order is made under section xx of the xx Act …

Back to top

September 2015: LDAC up and running

Members have now been appointed to the new Legislation Design and Advisory Committee by the Attorney-General. They include: Paul Rishworth QC from Crown Law (the Chair); David Noble, Fiona Leonard, and Jacqueline Derby from PCO; David King and Sarah Kerkin from MOJ; Tania Warburton from DPMC; Karl Simpson from MBIE; Jonathan Ayto from the Treasury; Stewart Bartlett from MSD; Anthea Williams and Geoff Daniels from MPI; Becky MacNeill from MfE; and John Sutton and Andrea Speir from DIA and MPI respectively, as reserve members.

The committee held its first meetings in July—when the Attorney-General attended briefly to note his support—and in August. Officials from several departments have been invited to discuss their Bills. The timing of the committee’s involvement this year has meant, however, that some Bills are already too well-developed for much input before introduction. The committee has nonetheless identified several matters that it wants to include in the LAC Guidelines (2014 edition) to assist officials. These include the general importance of departments developing regulations in tandem with a Bill so that the public is aware of their detailed requirements and can make informed submissions. Also, there is the general question as to the use of exhortatory provisions in statutes, without sanctions. The committee has resolved to look at this issue in more depth.

The committee is currently overseeing the writing of the Manual, which will be a detailed document supporting the Guidelines with case law, academic discussion, legislative examples, and links to external sources. It will provide policy officials, legal advisers, and others with a more thorough understanding of the justification for individual guidelines.

Delia Cormack has been recently appointed as Secretary to the LDAC and can be contacted on

Back to top

September 2015: Departures from LAC Guidelines: compliance reporting requirements in Cabinet papers

Please remember that, as mentioned in the July PCO Quarterly, Cabinet papers seeking approval to introduce a Bill or to submit a regulation to the Executive Council should identify whether any aspects of the Bill or the regulations depart from the default approach in the 2014 LAC Guidelines, and provide justification for any variation.

The requirements are set out in Cabinet Office Circular CO (15) 3 Revised Legislation Advisory Committee Guidelines: Cabinet Requirements. The CabGuide’s template for a paper seeking agreement to the introduction of a Bill or SOP has been updated to reflect the new requirements.

The LDAC website ( provides the LAC Guidelines (2014 edition), including a checklist to assist officials.

Back to top

September 2015: Enhanced legislative scrutiny

Recently staff in Select Committee Services have begun a process called enhanced legislative scrutiny (ELS). This was proposed by the previous Clerk of the House, Mary Harris, and is being continued by the present Clerk, David Wilson.

The main purpose of enhancing select committee scrutiny of legislation is to provide a parliamentary focus on the legislative quality aspects of Bills. This is now one of the Office of the Clerk’s key impacts as listed in its Statement of Intent.

ELS involves scrutinising Bills that are referred to select committees to see whether they appear to conform to LAC Guidelines. Committee staff also consider the disclosure statements in relation to significant legislative features of the Bills being scrutinised.

The process is relatively new and just now getting under way. The scrutiny work is done when a Bill is introduced in the House to allow time for it to be completed before the Bill is referred to a select committee. If issues are identified in the legislation, these are brought to the attention of the select committee which then decides whether to seek further advice or not. The Office of the Clerk and PCO are forming a working group working together to clarify process matters.

Back to top

July 2015: New Legislation Design and Advisory Committee

To improve the quality of legislation, the Government has remodelled the LAC to make its legislative advice more effective. The new committee, called the Legislation Design and Advisory Committee (the LDAC), operates along the lines of the former Legislation Design Committee by advising departments about the design and content of Bills as they are first being developed, when most value can be added. Earlier advice will help sort out problems in the framework of legislation and fix potential rule of law issues.

The Attorney-General announced these changes in a media statement of 29 June 2015.

The LDAC is a small committee with members who are drawn exclusively from the public service. Six ex-officio members represent the PCO, the Department of Prime Minister and Cabinet, the Crown Law Office, and the Ministry of Justice. The LDAC will form small subcommittees of three or four members with relevant expertise to work on specific Bills.

Departments should contact the LDAC when they start work on drafting instructions for projects that are significant in scope and will involve complicated legislative design issues, or that could have public law implications, or potentially affect the overall coherence of the statute book. Departments should talk to the PCO if they are unclear about whether to consult with the LDAC. The LDAC may also approach departments to offer its assistance on relevant projects.

The LDAC anticipates being consulted each year on 20 to 25 Bills: those with big structural issues or smaller Bills that raise complex detailed issues. Bills selected for consultation will be identified in Ministers’ annual Legislation Programme priority bids.

The Chief Parliamentary Counsel, his Deputy, and the Department of Prime Minister and Cabinet have selected 18 Bills from the 2015 legislation programme for consultation this year and responsible departments will be contacted shortly.

The LDAC has taken over responsibility for the 2014 revised LAC legislative guidelines. These guidelines are the Government’s key reference for assessing whether draft legislation conforms to accepted legal and constitutional principles.

Departmental officials who work on legislation should understand the function and scope of the guidelines, and when, and how, the Government expects them to be used. They should also be aware that Cabinet papers seeking approval to introduce a Bill or to submit a regulation to the Executive Council should identify whether any aspects of the Bill or the regulations depart from the default approach in the guidelines, and provide justification for any variation. The guidelines note that in some cases departures will be appropriate.
The LDAC plans to make available next year a detailed supporting manual of case law, academic analysis and commentary, and additional examples of existing legislation that demonstrate particular issues discussed in the 2014 revised guidelines.

The PCO provides policy and administrative secretariat services to the LDAC and is responsible for the LDAC website—which is currently available at but will move shortly to Existing links to the LAC Guidelines will automatically redirect to the new website when it is operational.

The LDAC can be contacted on

Information about the 2014 revised legislative guidelines and the LDAC is set out in the Cabinet Office Circular CO (15) 3 Revised Legislation Advisory Committee Guidelines: Cabinet Requirements.

Back to top

July 2015: New Legislative Instruments now published at 11 am

New Legislative Instruments are now routinely published to the NZ Legislation website at 11 am on their day of gazetting, instead of the previous 4 pm publishing time. New Legislative Instruments will appear on the website shortly after 11 am.

Please remember, when publicly announcing a Legislative Instrument, not to release it ahead of the instrument being notified in the Gazette.

If you wish to publish a link to the instrument, you can contact us for help with setting this up in advance of publication. But again, don’t release the link before the instrument has been published online.

Back to top

July 2015: From policy to Parliament: a poster of the drafting process and time line

image in the shape of beehive showing steps from policy to parliament

Now available: a poster showing the flow of the drafting process that includes how much time to allow the PCO at each step.

Copies of the poster are available on request.

And finally, please remember not to truncate the time needed for drafting and reviewing a Bill. Feel free to ask your drafting team manager for assistance with forming a realistic estimate of the time to allow for PCO processes.

Back to top

March 2015: Editorial by the Chief Parliamentary Counsel

David Noble

David Noble

As Chief Legal Advisers will know, I was recently invited to give a briefing to the Regulations Review Committee about the status of items in the latest report of legislation waiting to be brought into force by Order in Council without a specified default commencement date. The committee indicated its interest also in broad trends in the use of this type of commencement mechanism.

The Attorney-General presents a report of this legislation to Parliament each year. (Refer to the PCO’s website at for the latest report as at 1 July 2014.)

The requirement to report arose from the Regulations Review Committee’s 1996 report Investigation into the commencement of legislation by Order in Council. As a general principle, commencement by Order in Council should only be used where clearly justifiable, because Parliament is, by allowing this commencement mechanism, delegating its power to the Executive to determine the commencement of legislation. The annual report allows Parliament to monitor the use of this type of commencement mechanism.

The PCO prepares the report annually from information on the NZ Legislation website and includes departmental comments about why commencement is by Order in Council and, where possible, when such items are likely to be brought into force. The PCO has started updating the information in the report on a quarterly basis.

The Regulations Review Committee has expressed particular interest in certain items of legislation in the report and I have recently written to the Chief Executives of those relevant departments for additional information about their items, such as progress updates on any related implementation work or policy reviews and any timeframes for either the commencement or repeal of these enactments. I have been asked to report back to the committee by 15 May.

A Statutes Repeal Bill, expected to be introduced this year, will also provide a vehicle for repealing provisions that are waiting to be brought into force that are no longer needed. This is noted in the report.

My approach is that where commencement is by Order in Council it is good legislative practice to specify a default commencement date that is about two years after Royal assent. In some rare cases, justification may exist for not having one, such as where commencement is dependent on ratification of a treaty. And complex legislative schemes may justify longer than two years in order to allow a phased implementation. Departments are responsible for advising ministers about these matters and ultimately for explaining the commencement position to the Regulations Review Committee or the select committee that considers the Bill.

Departments should supply to the PCO an explanation of why commencement by Order in Council is being sought and any material setting out the steps, with a timeframe, that need to be undertaken to bring the Act into force. This information will be put in the explanatory notes in Bills.

On a different note—I have been delighted with the success of the legislation bids process this year. The additional information provided by departments, particularly in relation to Legislative Instruments, as well as the use of realistic bid categories and timeframes, put the draft 2015 programme in excellent shape for Cabinet. My thanks go to all in the departments involved.

David Noble

Back to top

March 2015: Legislative disclosure statements: file size must be included in links to PDF documents

Legislative disclosure statements will usually include links to other documents on the responsible agency’s website or elsewhere. These documents will often be in PDF format.

The New Zealand Government Web Standards require that links to PDFs (and other non-HTML files) must include the size of the document being linked to, as well as its format (Web Usability Standard 2.5).

For example, a link to the “Guide to Working with the PCO” in PDF format might look like this:

“see (631KB)”

Please remember when providing links to PDFs in disclosure statement text to include the PDF file size.

Back to top

December 2014: Mathematical equations in legislation

Do you administer legislation that includes equations? The PCO has recently reviewed the way that equations are formatted in PDF documents, compared to how the HTML file looks when it is viewed on, or printed from, the legislation website. Often an equation that is perfectly formatted in a PDF document, will look completely different when it is viewed on the website. For example:

an equation that looks like this in PDF—

example of equation in PDF format

may look like this on the website—

example of quation in html format that is not displayed successfully

The same equation could be expressed in a single line string, as follows:

5% + {0.05 × √[(LE – $2,000,000) ÷ $3,000,000]}

If an equation or formula is expressed in a single line string, it will not distort when viewed in HTML format on the website.

For this reason, the PCO will in future be asking instructors to provide instructions that involve representing equations in a single-line string. Please feel free to contact your Drafting Team Manager if you have any queries about this. Please contact us to get in touch.

Back to top

September 2014: Cabinet Office Circular: Attorney-General’s Protocol for Release of Draft Government Legislation Outside the Crown

Cabinet Office Circular CO (14) 4 provides the Attorney-General’s Protocol for Release of Draft Government Legislation Outside the Crown.

Section 61 of the Legislation Act 2012 confirms the long-standing position that draft legislation prepared by, or on behalf of, the Parliamentary Counsel Office is subject to legal professional privilege. Legal professional privilege in draft legislation lies with the Attorney-General as the principal law officer of the Crown. It is for the Attorney-General to determine whether to release draft legislation outside the Crown and, as a consequence, potentially waive legal professional privilege. 

The Protocol (annexed to the Circular) supplements existing guidance contained in paragraphs 4.58 to 4.68 of the Cabinet Manual 2008, and makes clear when the Attorney-General’s approval must be sought for the release of draft legislation outside the Crown.

Back to top

September 2014: New Standing Orders released

The new Standing Orders of the House of Representatives, effective from 15 August 2014, are available on the Parliament website under Parliamentary Business | Rules of the House.

Also available is a finding chart that shows how the Standing Orders have been renumbered.

The Standing Orders include the new streamlined procedures for the parliamentary stages of Revision Bills (SO 271).

Back to top

June 2014: Legislation Amendment Bill introduced

The Legislation Amendment Bill was introduced in the House on 20 May 2014. The Bill:

  • moves the Interpretation Act 1999 into the Legislation Act 2012, with some amendments (Part 1)
  • enacts legislative disclosure requirements for Government Bills and SOPs, and also for disallowable instruments that are drafted by the PCO (Part 2)
  • makes minor amendments to the Legislation Act 2012 (Part 3).
Part 1: Interpretation Act 1999

The Bill re-enacts the Interpretation Act 1999, with some updating improvements, in the Legislation Act 2012.

In 2008 the Law Commission recommended bringing together all of the provisions about legislation to improve their accessibility. The Government delayed implementing the recommendation to relocate the Interpretation Act 1999 in the Legislation Bill in order to complete a review of the Interpretation rules.

The PCO published a public discussion paper in March 2013, proposing the relocation and updating of the Interpretation Act 1999. The submissions received in response provided general support for the proposals. Some small fine-tuning improvements and clarifications to the rules will address technical issues and developments identified since 1999.

These include:

  • a new provision to deal with the status of legislated examples by providing that an example will not be exhaustive and may extend a provision’s operation, to ensure that examples are properly considered
  • providing more clearly that a power in an enactment to confer or impose on a person a legal position (right, interest, title, immunity, duty, status, or capacity (for example, an entitlement to be registered under an enactment)) can be exercised between the enactment’s passing and commencement
  • a new provision that a reference in an enactment to a latent repealing enactment is until that latent repealing enactment comes into force a reference to the enactment being replaced
  • allowing regulations made under an Act to make consequential amendments to regulations made under another Act
  • setting out the rule established in case law about how to measure a time period described in months
  • clarifying the section 5(1) requirement so that the meaning of an enactment must be ascertained from its text in the light of its purpose and in its context.

The responsibility for administering the Interpretation rules will transfer from the Ministry of Justice to the PCO.

Part 2: Disclosure requirements for Government-initiated legislation

The Bill also enacts legislative disclosure requirements for Government Bills, SOPs, and disallowable instruments that are drafted by the PCO.

Departments are currently required to prepare legislative disclosure statements for Government Bills and substantive SOPs, which are published when the Bills and SOPs are published. These requirements, which have been implemented administratively since July 2013, will be extended to disallowable instruments.

Certain Government Bills (and amendments) will be excluded from the requirements:

  • Imprest Supply Bills, Appropriation Bills, Subordinate Legislation (Confirmation and Validation) Bills
  • Statutes Amendment Bills
  • Bills that primarily repeal or revoke spent enactments
  • revision Bills.

The requirements are designed to improve the quality of legislation by increasing the information available for the public and parliamentary scrutiny of new Government-initiated legislation. The statements provide:

  • background material and policy information concerning the legislation
  • information about key quality assurance assessments or processes used to test the robustness of the content of the legislation
  • information about significant or unusual legislative features.

Statements for SOPs will not be required if:

  • a statement cannot reasonably be prepared before the parliamentary scrutiny of the SOP occurs; or
  • no publicly available information about background material and policy information or the testing of the legislative content is available and the amendments would not have materially changed the original disclosures on the Bill.

For disallowable instruments, disclosure will be required about:

  • background material and policy information concerning the legislation
  • the key quality assurance processes used to test the robustness of its content.

However, the disclosure requirements will not apply if there is no relevant information available or information has already been published in another disclosure statement.

The Bill clarifies that the information disclosure obligation is not intended to impose conditions or restrictions on the content of legislation, on the legislative processes of Parliament, or on the ability of the Government to develop legislation. The disclosure provisions will be reviewed after five years and the review findings will be presented to the House and published.

The Treasury will administer these provisions.

Part 3: Legislation Act 2012 amendments

Part 3 of the Bill makes a few small amendments to the Legislation Act 2012, which include:

  • clarifying that the PCO’s statutory function includes publishing supporting documentation relating to Government Bills, SOPs, and certain instruments (for example, legislative disclosure statements)
  • repealing the requirement to designate by Gazetted notice those bookshops that sell hard copy legislation (for a reasonable price), as public access is now mainly through the free NZL website, which is an authoritative source of official legislation.

Back to top

March 2014: Congratulations (x 3)

bouquetThank you!

A bouquet to all those departments who have effectively managed their legislative bid process and programme this year. The legislation programme is looking more achievable than in previous years, as a result of departments' efforts.

Bill Moore QSO with Governor General cropWilliam Moore QSO

Bill Moore has been appointed a Companion of the Queen's Service Order in recognition of his services to the State. Pictured: the Governor-General congratulates Bill at the investiture on 19 March at Government House.

Launch of Subordinate Legislation in New Zealand

On 25 February 2014, the Attorney-General, Hon Christopher Finlayson QC, launched Subordinate Legislation in New Zealand by Ross Carter (Parliamentary Counsel), Jason McHerron, and Ryan Malone. David Noble introduced the event, held at Parliament.

In his speech, the Attorney emphasised the importance of subordinate legislation and highlighted the reforms to legislation brought about by the Legislation Act 2012. He congratulated the authors, describing the book as "an outstanding piece of work ... [that] should be in every law library, government department, and ministerial office".

Ross Carter, Jason McHerron, Ryan Malone, and David Noble at book launch

From left: Ross Carter, Jason McHerron, Ryan Malone, and David Noble

Back to top

March 2014: Notify PCO when legislation comes into force by non-standard means

From time to time, legislation is brought into force by non-standard meansperhaps by an exchange of letters, or by agreementrather than on a fixed date or by Order in Council.

If this applies to legislation that your agency administers, please ensure you notify us when that non-standard event happens.

Otherwise, we are unlikely to find out at the right time and the legislation is likely to remain "not yet in force" on the New Zealand Legislation website.

To inform us, please email the details to PPU (please contact us for the email address) and copy your email to the legislation's drafter.

Back to top

March 2014: Publication of Legislative Instruments

In the previous PCO Quarterly, we explained that we are not in a position to delay publication or gazettal of Legislative Instruments (LIs) once they have been made (see below).

Nor can we release LIs to agencies for publication before they appear in the Gazette.

Legislative Instruments are published to the New Zealand Legislation website at 4 pm on their day of notification in the Gazette, appearing on the website shortly afterwards. (Earlier web publication times are possible for LIs notified in supplementary Gazettes, if arranged in advance. See Notifying Legislative Instruments.)

However, if you want to prepare for publication by having a link to the New Zealand Legislation website ready in advance, we can help. Please ensure that the link isn't released before the LI is published, though, for obvious reasons!

To obtain the URL in advance, email

Back to top

March 2014: SR series completed; LI series begins

December 2013 marked the end of the Statutory Regulations (SR) publication series. Legislative Instruments made in 2013 were included in the SR series; Legislative Instruments made from 2014 onwards will have an LI reference number.

The 2013 bound annual volumes, currently being printed, will be the final bound volumes published by the PCO. However, Legislation Direct will continue to publish bound annual volumes.

Back to top

March 2014: Official online legislation and older versions

NZ coat of armsOfficial legislation is available from the New Zealand Legislation website in PDF format. If a PDF displays the New Zealand Coat of Arms on its first page, it is official.

In many cases, it is not just the latest version of an Act or Legislative Instrument that is official. For example, four out of the eight available older versions of the Health and Safety in Employment Act 1992 are official.
A quick way to check whether a PDF is official is to look at its associated View whole version. Although not itself official, the View whole version will display the New Zealand Coat of Arms if the PDF is official.

To see all the different versions available of an Act or Legislative Instrument, look under its Versions and amendments tab. Click on + Show older versions to reveal the full list of versions.

For more information about official online legislation, see the New Zealand Legislation website.

Back to top

March 2014: How to download sections in Word or PDF format

You can download individual sections or clausesup to 50 at a time, from one or more documentsfrom the New Zealand Legislation website in Word or PDF format by tagging them.

To do this, navigate to one of the sections or clauses you want to download and click the Tag section button.

Do this for each section or clause that you want to download in turn. Your collection of tagged sections/clauses will be saved for 13 days or until you clear it.

To view your collection, use the Tagged sections/clauses link at the top of the screen.

Then download your collection by clicking Download all.

Once your document is downloaded, you can print or save it (or edit it, if you selected Microsoft Word format).

Note that PDFs of tagged legislation are not official. See above for more about official PDFs.

Back to top

December 2013: Providing legislation to the public

If you provide legislation to the publicvia your agency website, newsletters, media releases, etcplease ensure you do so by linking to the New Zealand Legislation website. This website is:

  • official
  • free
  • up to date.

But remember: don't provide a link before the legislation is published. New Acts are usually published on the New Zealand Legislation website on the same day that we receive assent information; new Legislative Instruments are published on the day they are gazetted.

If you would like to prepare a direct link in advance, for release as soon as the legislation is available, please let us know so that we can help:

Back to top

December 2013: Gazettal and publication of Legislative Instruments

There have been several requests recently from agencies and Ministers' offices either to delay gazettal of Legislative Instruments (LIs) once made or to delay publication on the New Zealand Legislation website.

Please remember that LIs, once signed, are made. Gazetting is only a public notification. Further, the PCO must publish LIs in electronic form as soon as practicable after the LI is made (refer section 6(3) of the Legislation Act 2012). This also applies to Acts (section 6(2) of the Legislation Act 2012). There is no ability for the PCO to delay gazettal or publication of LIs.

Accordingly, if there are timing issues relating to the making and publication of a LI, they need to be factored in when deciding on which date the LI is to be made, and the LI only sent to Cabinet for approval and signature by the Governor-General at that time.

Back to top

September 2013: Concerns that might arise during drafting

If you have any concerns relating to the drafting of legislation, for example, timetables, process, service, or relationship issues that you cannot resolve with the drafter, the matter should be referred, in writing, to the relevant PCO Drafting Team Manager. This should be done at the time the matter arises. A copy of the written concerns will be provided to the relevant counsel. The Drafting Team Manager will resolve the matter with you and the counsel, or may refer the matter to the Deputy Chief Parliamentary Counsel or Chief Parliamentary Counsel if resolution is not possible.

See the Guide to Working with the PCO for information on the role of the drafter.

Back to top

September 2013: Regulations Review Committee questions

Where the Regulations Review Committee has requested information relating to instruments that they are reviewing, feel free to discuss your response with your Drafting Team Manager. This can be helpful, particularly where questions contain a legal or practice component.

Back to top

September 2013: Legislative drafting practice making clear new subordinate legislation's status

Introductionnew drafting practice adopted after review

The PCO has, in connection with the Legislation Act 2012 coming almost fully into force (on 5 August 2013), reviewed its practice for the drafting of (wholly new, or amended) empowering provisions for new subordinate legislation.

A particular focus of that review was making clear the status of instruments for the purposes of publication, disallowance, and tabling. The resulting new drafting practice adopted (with effect on and after 20 August 2013) ensures empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.

Practice adopted relies on, and may describe or modify effect of, applicable default rules

An instrument's status can be made clear by reliance on applicable default rules, or by express statements (that confirm or modify the effect of applicable default rules). The Legislation Act 2012 envisages that other Acts will confirm or modify its effects.

The practice adopted indicates when empowering provisions do and don't state (confirm or describe) an instrument's status. That turns on whether the instrument made is an Order in Council ("traditional regulations"), or a non-Order in Council ("agency regulations"). If the position under the default rules is to be modified, the modification (overriding or departure) must be done by express statement.

The practice adopted balances:

  • avoiding declaratory provisions that don't alter, but only describe, the clear status under applicable default rules of Orders in Council; and
  • using declaratory provisions for non-Orders in Council ("agency regulations"), including where declaratory provisions have been required by Government responses to reports of the Regulations Review Committee.

Experience suggests that the Regulations Review Committee may recommend clarifying amendments to empowering provisions that leave unclear the publication, disallowance, and tabling status of non-Order in Council instruments that are legislative in character.

Standard wording (model clauses) giving effect to new practice adopted

The PCO has, to give effect to the practice adopted, also developed standard wording (model clauses). A copy of this wording and these model clauses is below. It indicates briefly and clearly the usual practical outcomes of the practice adopted. This information has also been communicated to the Regulations Review Committee and to others involved with new legislation (for example to the Legislation Advisory Committee).

Ensuring intended outcomes are achieved effectually, clearly, and consistently

Drafting instructions must indicate the intended status of instruments for the purposes of publication, disallowance, and tabling.

PCO counsel will confirm with instructors whether the instrument's status under the default rules, or a modification of that status, is intended. Then, by following the new drafting practice, PCO counsel will ensure empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.

When to modify defaults (override or depart from Legislation Act 2012)

Express modifications that ensure that Orders in Council are not a legislative instrument (LI), or not a disallowable instrument, must be required by deliberate policy decisions and clearly justifiable in the light of past practice and relevant principles. Exemptions can be expected to be scrutinised closely by the Regulations Review Committee.

Publication outside the LI series (for example, in full in the Gazette, or via a website, or otherwise in a special way) will more likely be appropriate for non-Orders in Council or "agency regulations". But the empowering provision for them must always provide for availability (by stating that the instrument is a legislative instrument, or otherwise).

All instruments of a legislative character (ie all those with a significant legislative effect) are, by default, disallowable by virtue of the Legislation Act 2012 section 38(1)(c), unless section 38(2) or (3), or another enactment (section 38(4)), provides otherwise. If an instrument with a significant legislative effect is, for compelling reasons, not to be disallowable, an express provision is required to secure that outcome. The compelling reason may be that the instrument is made by the House of Representatives, is a remuneration instrument (see, for example, Governor-General Act 2010 sections 5(5), 6(4), and 8(6)), or is subject to affirmative resolution (see, for example, Dog Control Act 1996 section 78A(3)).


Instructors are both welcome and encouraged to consult PCO on the new drafting practice for making clear new subordinate legislation's status, including modifying any default status.

Standard wording for declaring status of subordinate legislation
ClassificationWording to use
The instrument will come within paragraph (a) of the definition of legislative instrument Don't put any statement in the empowering provision about the status of the instrument, unless you have to override the Legislation Act (see below).
The instrument does not come within paragraph (a) or (b) of the definition of legislative instrument

In the absence of instructions to the contrary, use:

Model clause 1: A [instrument] is a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Departures from that standard position are:

If the instrument is to be published in the LI series (and will thus come within paragraph (c) of the definition of "legislative instrument"). For that departure the following provision is used:

Model clause 2: A [instrument] is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

If the instrument is not to be disallowable, use:

Model clause 3: A [instrument] is not a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

The instrument comes within paragraph (b) of the definition of legislative instrument Use model clause 2, unless you have to override the Legislation Act.
Overriding the Legislation Act for instruments within paragraph (a) or (b) of the definition of legislative instrument

If the instrument is not to be disallowable, use:

Model clause 4: A [instrument] is a legislative instrument but not a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

If the instructions are that the instrument is neither to be published in the LI series, nor to be disallowable, use:

Model clause 5: A [instrument] is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

Back to top

June 2013: Legislation Act 2012: orders and regulations made

On 10 June 2013, the following orders and regulations were made:

Back to top

June 2013: Citing Standards in legislation

Update March 2014: see also the Standards New Zealand document "How are standards used in policy and legislation?"

It is important that Standards are referenced correctly in legislation. This article provides information on how to achieve this. Standards New Zealand is also always ready to help with further advice or by vetting citations (see end of this article). The article covers Standards as issued by Standards Developing Organisations (SDOs) at both a national level and at an industry sector level.

Why incorporate a Standard by reference? Doing this avoids reproducing the lengthy and often technical information contained in the Standard within the legislation itself. However, if a reference is ambiguous, the advantage is lost and, worse, the intent of the legislation itself can be compromised through challenges around which Standard or which version of a Standard is required.

Citing a New Zealand Standard in an Act or regulation places obligations on the Standards Council of New Zealand. Section 10(4) of the Standards Act 1988 requires that ministerial permission is sought in order to amend, revise, revoke, or replace a cited Standard. Please advise Standards New Zealand when you incorporate by reference, so that they will not be in technical breach of the Act.

References to Standards in legislation should include, as a minimum, the following five components:

1. Prefix

Usually the prefix will indicate the issuing body as well as some information about the type of Standard it is, for example:

SNZ HB: Standards New Zealand Handbook
NZS: New Zealand Standard
AS/NZS: joint Australian/New Zealand Standard
AS/NZS ISO: joint Australian/New Zealand adoption of an ISO (International Organization for Standardization) Standard
NZS AS: Australian Standard adopted as a New Zealand Standard
NZS BS: British Standard adopted as a New Zealand Standard
ISO/IEC TR: A Technical Report jointly issued by the ISO and IEC (International Electrotechnical Commission)

2. Number

Include all applicable part numbers. Examples are:

3604: This indicates Standard number 3604
4407.3.2: This indicates Standard number 4407, Part 3.2

Some SDOs use full stops or periods (.) between number and part number; others use dashes (-). The British Standards Institute (BSI) usually uses a dash between the number and part, and a period between part and subpart (eg BS 1560-3.2).
Be careful not to cite a "generic" number as a means of referencing multiple Standards, unless explanation is given as to interpretation. For example, the only Standards in the AS/NZS 3008 range are:

AS/NZS 3008.1.1:2009
AS/NZS 3008.1.2:2010

Here a reference to either AS/NZS 3008 or AS/NZS 3008.1 would be unclear as neither of these prefix/number combinations are actual Standards. AS/NZS 3008.1 by itself is simply a title construct to cover that branch in the subject and to group the Standards that come under it. For the avoidance of doubt, the individual Standards themselves should be referenced.

3. Year of issue

In most cases this is used by SDOs to differentiate between editions. Section 23 of the Standards Act 1988 covers some situations where legislation does not specify the year of issue of a New Zealand Standard. In such cases "any such citation shall (unless the context otherwise requires) be deemed to include and refer to the latest New Zealand standard with that citation (together with any modifications to it) promulgated by the Council before the Act was passed or the regulation or bylaw made" (emphasis added). Empowering legislation may require different interpretations as to which edition is referenced.

In contrast, citing an overseas Standard without specifying the year of issue creates uncertainty about which edition is being referenced, and this should be avoided if possible. However, not all SDOs use a year to indicate edition. Some use edition numbers, or a combination of year and edition number (for example IEC 60974-4 Edition 2.0 2010-08), while others provide only a publication date as the means of clearly identifying editions.

4. Title

Always accurately quote the full title. Many Standards titles can be very similar to each other. The full title for any given Standard includes, at a minimum, the number title, and the part title if it exists. To use the AS/NZS 3008.1.2 example again, the series title (overall subject) is "Electrical installations - Selection of cables", and the part title is "Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV - Typical New Zealand conditions". These two titles should be concatenated to be fully correct: "Electrical installations - Selection of cables - Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV - Typical New Zealand conditions".

5. Name of issuing organisation

If all the above details are clear and correct it may not be necessary to specify the name of the SDO. However it is desirable to do so, as the prefix itself does not always accurately indicate the SDO that produced the Standard. For instance, both Standards Australia and the Society of British Aerospace Companies (SBAC) have a Standard with the number AS 1162. Because of this, and in the interests of clarity, the citation should include the name of the SDO.

Note that some SDO organisational acronyms do not always match the English translation of the name. For example, ISO is officially the International Organization for Standardization, but is commonly known as the International Standards Organization.

You should also pay attention to the following:

Issuing authority

In the case of New Zealand Standards, the SDO is Standards New Zealand (SNZ), which operates under the authority of the Standards Council of New Zealand. Standards only become valid documents when approved by the Standards Council. It is the Standards Council that is the subject of the Standards Act 1988.


Consideration needs to be given to future revisions of the cited Standard. Standards are revised on average every seven years. Explicit statements in the legislation explaining the status of later editions of the Standard, or of amendments that might be issued to the Standard, are desirable. Although section 10(4) of the Standards Act 1988 requires the Standards Council to obtain the permission of the relevant Minister before it can revise, amend, or withdraw Standards that are cited in an Act or regulation, overseas SDOs are, of course, not similarly constrained.

It is common for the legislation that authorises the issue of regulations to specify aspects of incorporation by reference, including how subsequent amendments to incorporated instruments should be dealt with. It is useful, however, to keep in mind the level of understanding that readers of regulations will have of matters like subsequent amendments. Being as clear as possible when specifying incorporated material, within the limits of policy objectives, is always beneficial.

Be aware that SDOs may replace (supersede) a Standard with multiple Standards, each potentially with a different number and possibly a slightly different subject matter. As a result, a blanket statement to the effect that the legislation extends to all later versions of the Standard may lose relevance over time.


Always check that the Standard actually exists. Check the prefix, number, year and title. Sometimes a future Standard (in the form of a draft Standard) will be cited. A draft Standard has only a very short lifespan and can be difficult or impossible to obtain once its original purpose is achieved, so the citation must make it clear how the transition from the draft Standard to the published Standard will affect the legislation. Once published, the Standard will very often differ from the draft that preceded it.

Checking the existence and details of the Standard is best done by viewing an original hard copy or through the website of the issuing SDO. Many SDO websites can be accessed through the ISO website links page at

New Zealand and joint Australian and New Zealand Standards can be checked at by entering the number of the Standard into the search box at the top of the page. Always take note of the status of the Standard. If it has been superseded or withdrawn, you may choose to reference a more recent edition.


Standards New Zealand is always happy to check the details and status of a Standard on your behalf:
Phone: 0800 782 632 Email: Web:

Thanks to Craig Radford, Standards Solutions Specialist, Standards New Zealand, for supplying this article.

Back to top

March 2013: Incorporation by reference: Legislation Act 2012


Subpart 2 of Part 3 of the Legislation Act 2012 (the subpart) will, when it comes into force,* generally authorise most instruments made under an Act to give effect to provisions contained in a wide range of documents, without having to set out those provisions in the instruments themselves. That technique is known as incorporation by reference. It has clear attractions, principally in its avoidance of unnecessary duplication. But the technique can, if not properly managed, give rise to problems:

  • First, the incorporated material may not be readily accessible.
  • Secondly, it may be unclear whether future changes to the incorporated material are automatically incorporated into the instrument.
  • Thirdly, the scope for consultation with those affected by the instrument is likely to be curtailed if extraneous material is brought into force without being set out in the instrument.
Application of subpart

The subpart applies to most kinds of subordinate instrument. "Instrument" is widely defined as any instrument that has legislative effect and that is authorised by an enactment, regardless of what it is called (see section 48(1)). The definition specifically mentions regulations, rules, Orders in Council, notices, bylaws, codes, and frameworks. The term framework as a name for an instrument may seem unusual but it is used to describe instruments in the Education Act 1989 (for example, the New Zealand Qualifications Framework) and also in the Accident Compensation Act 2001. The definition of instrument is therefore expansive, but it does exclude bylaws subject to the Bylaws Act 1910.

An instrument may incorporate material by reference in reliance on the subpart unless the empowering Act expressly provides to the contrary. In the absence of such an express exclusion, the subpart may be relied on even if the Act under which the instrument is to be made was enacted before the commencement of the subpart and even if that Act provides for incorporation of material by reference (see section 50). But the subpart does not limit the provisions of other enactments, such as the Standards Act 1988, which authorises the incorporation by reference in regulations or bylaws of standards promulgated by the Standards Council (see section 57).

What may be incorporated

The subpart authorises instruments to incorporate by reference:

  • a standard, framework, code of practice, recommended practice, or requirement originating from an international organisation or a national organisation, or prescribed in a country or jurisdiction or by any group of countries; or
  • any other written material that deals with technical matters and that can reasonably be regarded as being too large or impractical to include in, or publish as part of, the instrument.

(see section 49)

Availability of material proposed to be incorporated or incorporated

Material that is proposed to be incorporated by reference in an instrument or that has been incorporated must be made available in accordance with the subpart if the subpart is relied on as authority for the incorporation. The chief executive of the department or other agency promoting the instrument must:

  • make copies of the material available for inspection and purchase; and
  • make copies of the material available, free of charge, on an internet site maintained by or on behalf of the department or other agency, unless doing so would infringe copyright.

(see sections 51 and 52)

The chief executive may make copies of the proposed material available in any other way that he or she considers appropriate in the circumstances. This may be particularly appropriate in cases where, because of copyright reasons, the material cannot be freely published on the internet. In cases where there is no impediment to publication on the internet and publication on the internet is accordingly required, that requirement may be complied with by providing a hypertext link.
(see sections 51(2) and 52(3) and (4))

The ways in which the material is made available must be notified in the Gazette when it is proposed to incorporate material in an instrument and also once it has been incorporated in an instrument.
(see sections 51(1)(d) and (2)(b) and 52(2)(d) and (3)(b))

Consultation on proposed incorporation

Before material is incorporated by reference in an instrument, the chief executive of the promoting department or agency must allow a reasonable opportunity for persons to comment on the proposal to incorporate the proposed material and must consider any comments made.
(see section 51(1)(e) and (f))

Certainty of legislative effect of incorporated material

No change to material incorporated in an instrument has any legal effect unless a later instrument incorporates the change in accordance with the subpart.
(see section 53)

An instrument that incorporates material by reference is a disallowable instrument. However, the material itself does not have to be presented to the House of Representatives.
(see sections 56 and 55(2))

Evidentiary matters

The chief executive of the promoting department or agency must retain a copy of any material incorporated by reference in an instrument in reliance on the subpart and must certify it as a correct copy. The production of such a copy is, in the absence of evidence to the contrary, sufficient evidence of the material that has been incorporated in the instrument.
(see section 54)


The subpart will provide general authority for subordinate legislation to incorporate material by reference and will do this on a principled basis that complies with the principles formulated by the Regulations Review Committee and the Legislation Advisory Committee. It should generally remove the need for separate provisions in Bills authorising incorporation by reference. For that reason alone, it will receive a warm welcome from instructors and drafters alike.

*The subpart, and the other provisions of the Act not yet in force, is likely to come into force in the third quarter of this year. [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]

Back to top

March 2013: Disallowable instruments

Legislation Act 2012, subpart 1 of Part 3

Key points
  • The Legislation Act 2012 includes new provisions, to commence on or before 1 July 2014 (but likely to be in the third quarter of this year), on disallowance of items of subordinate legislation that are "disallowable instruments". [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]
  • The 2012 Act uses separate definitions for (a) publication of "legislative instruments" (in the new LI series replacing the SR series) and (b) disallowance of "disallowable instruments".
  • The new disallowance provisions replace the Regulations (Disallowance) Act 1989 (under which regulations were disallowed, for the first time ever, at the close of 27 February 2013).
  • The 2012 Act defines "disallowable instrument" substantively (by reference to legislative effect), which (a) avoids gaps in earlier, more formal, definitions and (b) enhances Regulations Review Committee (RRC) scrutiny.
  • Related changes will be made to the Standing Orders that define the RRC's functions
  • Every new empowering provision for regulations or another kind of subordinate legislative instrument needs to make clear that instrument's publication status and disallowance status.
  • This article introduces the 2012 Act, and summarises the new disallowance regime.
2012 Act combines provisions on legislation

The Legislation Act 2012 got Royal assent on 11 December 2012. On 12 December 2012, some of its provisions came into force, namely: Part 1 (general provisions); subpart 3 of Part 2 (revision); and most of Part 4 (provisions relating to the PCO and the repeal of the Statutes Drafting and Compilation Act 1920). Its other provisions, including subpart 1 of Part 3 (ss 37 to 47) on disallowable instruments, commence on 1 July 2014 or an earlier appointed date.

The Act's purposes include (s 3(a)) to bring together the main provisions of New Zealand legislation on the drafting, publication, and reprinting of legislation, and the disallowing of instruments. The 2012 Act will therefore replace (s 77(2)) the Regulations (Disallowance) Act 1989, under which regulations were disallowed for the first (and perhaps only) time on 28 February 2013: SR 2013/32. The Act implements most of the legislative recommendations made in two Law Commission reports:

New term: "disallowable instruments" - separate substantive definition strengthens scrutiny

As introduced on 25 June 2010, the Bill for the Act (162-1), in its explanatory note, said a key new defined term was:

"disallowable instrument, which has the meaning given in [section 38]. This term is used primarily in subpart 1 of Part 3 but is also used elsewhere in the Bill. The definition is intended to capture instruments that are [by definition publishable officially as legislative instruments], are expressly stated by an Act to be disallowable instruments, or have a significant legislative effect (within the meaning of [section 39]). Where an existing Act applies the Regulations (Disallowance) Act 1989 to a particular kind of legislative instrument, it is intended that the Schedule of this Bill will update that provision by stating that legislative instruments of that kind are disallowable instruments under subpart 1 of Part 3 of this Bill. So, the definition will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance".

In its 1 December 2010 report on the Bill (162-2), the Regulations Review Committee noted the Bill defines subordinate legislation separately and differently (and so does not continue the former, shared or "multi-purpose" definition of "regulations") for publication and disallowance purposes. The RRC was satisfied that the Bill would broaden the scope of disallowance, especially by covering instruments with "significant legislative effect"; a test that focuses on the substance of delegated legislation rather than its form or description, and reverses the former position that allowed delegated legislation to be excluded from the disallowance regime depending on how it is described.1

Speaking in the Bill's third reading debate on 5 December 2012, Hon Christopher Finlayson QC, Attorney-General, said: "The bill carries forward the existing regulations disallowance regime to allow Parliament to continue to oversee the use by the executive of delegated lawmaking powers. Very important is that it defines more clearly the nature of the subordinate legislation that will be the subject of the disallowance regime ... This has not always been clear, because some delegated legislation has been excluded from the disallowance regime on the basis of its form, rather than its effect. The bill defines a disallowable instrument to include an instrument that has significant legislative effect-that is, it affects the rights and obligations of the public. This has the effect of broadening the scope of the Regulations Review Committee's jurisdiction and strengthens parliamentary scrutiny of regulations and regulation-making powers."

The RRC's functions under the Standing Orders will be updated (by a Sessional Order effective when the 2012 Act's provisions commence) to reflect the new terminology of "disallowable instruments".2

What is a disallowable instrument? (sections 37 to 40)

Section 38 defines "disallowable instrument". In general, an instrument will be disallowable (under subpart 1 of Part 3) if the instrument:

  • is by definition publishable officially in the publication series for "Legislative Instruments" (as defined in s 4, and replacing the "Statutory Regulations" or "SR" publication series); or
  • is disallowable because of the operation of another enactment (for example, an Act may specifically state that an instrument is a disallowable instrument); or
  • has "a significant legislative effect", as defined in section 39.

Existing Acts that refer to the Regulations (Disallowance) Act 1989 are consequentially amended in the manner indicated by the Schedule so that they state whether or not an instrument is disallowable. So, the "significant legislative effect" test in section 39 will apply where an Act enables subordinate legislation to be made, but is (exceptionally) silent on the question of disallowance.

Section 39 defines significant legislative effect. To qualify under this definition, the effect of the instrument must be:

  • to create, alter, or remove (or to determine or alter the temporal application of) rights or obligations (as defined broadly by s 37); and
  • to determine or alter the content (or temporal application of) the law applying to the public or a class of the public.

In applying that test, the following must be disregarded: (a) the description, form, and maker of the instrument; (b) whether one or more of its provisions lapses unless confirmed by Act of Parliament; (c) whether it also contains provisions (for example, explanatory notes) that are administrative.

Section 40 gives some examples of how the temporal application of rights or obligations can be determined or altered. An example is an instrument that appoints a date on which specified statutory rights or obligations come into force. This therefore continues the current law as recognised, for example, in New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 at 164 (CA) (Commercial Radio case), as cited in New Zealand Maori Council v Attorney-General [2012] NZHC 3338 at [115] per Ronald Young J (Water Rights case) and [2013] NZSC 6 at [71].

Sections 38(1)(c), 39, and 40 will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance. Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. The RRC regards unfavourably empowering Acts that leave unclear the disallowance status of instruments.

Tabling of legislative instruments and of instruments that Acts state are disallowable

Section 41 requires legislative instruments, and those instruments that are stated by an Act to be disallowable instruments, to be presented to the House of Representatives not later than the 16th sitting day after they are made. It replaces section 4 of the Regulations (Disallowance) Act 1989. Arrangements are in place to ensure that this happens for instruments published by the PCO.3 But material incorporated by reference in a disallowable instrument usually need not be tabled (see, for example, the exception in s 55(2) of the 2012 Act for material incorporated under s 49 of that Act).

How instruments are disallowed

Section 42 provides for actual disallowance by a resolution of the House of Representatives. A member of Parliament would start this process by giving notice of motion to disallow a regulation. Section 42 replaces section 5 of the Regulations (Disallowance) Act 1989.

Section 43 provides for automatic disallowance of an instrument where certain things do not happen within 21 sitting days after a notice of motion to disallow the instrument has been given. This process is activated if, at the end of that period:

  • the notice of motion has not been withdrawn; or
  • the motion has not been disposed of in some way by the House; or
  • Parliament has not been dissolved and has not expired.

Section 43 replaces section 6 of the Regulations (Disallowance) Act 1989.

Effect of disallowance

Section 44 provides that an actual disallowance or automatic disallowance of an instrument under subpart 1 of Part 3 has the same effect as a revocation. It follows that:

  • the earlier instrument is not revived
  • a new instrument can be made in the usual way.

Section 44 replaces section 7 of the Regulations (Disallowance) Act 1989.

Section 45 applies where the instrument being disallowed has amended an Act or other instrument, or has repealed an Act or revoked an instrument. In such a case, the earlier enactment is restored or revived. Section 45 replaces section 8 of the Regulations (Disallowance) Act 1989.

Amendment or substitution of instruments by House of Representatives

Section 46 empowers the House of Representatives to amend a disallowable instrument or revoke and replace the instrument. This power was exercised for the first time in 2008 to amend the Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand (see SR 2008/362). Section 46 replaces section 9 of the Regulations (Disallowance) Act 1989.

Notification of disallowance, amendment, or substitution

Section 47 requires any actual or automatic disallowance of a disallowable instrument and any amendment or replacement of an instrument under subpart 1 of Part 3 to be notified by the Clerk of the House of Representatives. The notice is published by the PCO (see, for an example, SR 2013/32). Section 47 replaces section 10 of the Regulations (Disallowance) Act 1989.

Disallowable instruments are a subcategory of "regulations" as defined in Interpretation Act 1999

Section 77(4) ensures that the Interpretation Act 1999 s 29 definition of "regulations" includes "disallowable instruments" (as it did "regulations" under the Regulations (Disallowance) Act 1989). For the purposes of an enactment (including, without limitation, the Interpretation Act 1999), a disallowable instrument is therefore generally both "a regulation" and "an enactment".

Consult PCO on making clear disallowance status of new kinds of subordinate legislation

Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. If an instrument with a significant legislative effect is, for compelling reasons, not to be disallowable, an express provision is required to secure that outcome. The compelling reason may be that the instrument is made by the House of Representatives or is subject to a special affirmative resolution or disallowance regime. (An example is the disallowance regime in the National War Memorial Park (Pukeahu) Empowering Act 2012 ss 32 to 36.) Instructors are both welcome and encouraged to consult PCO on issues relating to disallowable instruments. 4

1 See Ross Carter, Regulations and Other Subordinate Legislative Instruments: Drafting, Publication, Interpretation and Disallowance (Occasional Paper No 20, New Zealand Centre for Public Law, Wellington, 2010):

2 The changes to the Standing Orders can be seen in the RRC's 6 April 2011 submission to the Standing Orders Committee on its 2011 Review of Standing Orders. The 2011 Review Report says (at p 48): "We generally support the amendments suggested by the Regulations Review Committee, and recommend that the House provide accordingly through a sessional order, when the Legislation Bill has been enacted and comes into force."

3 For more information on presentation of instruments not published in the SR or LI series but stated by an Act to be disallowable, see Presentation of papers to the House: Presenting regulations and deemed regulations on the Parliament website.

4 See also Ross Carter, Jason McHerron, and Ryan Malone, Subordinate Legislation in New Zealand (forthcoming, LexisNexis NZ Ltd, 2013), Chapter 11 (Disallowance, including amendment by resolution).

Back to top

March 2013: Subordinate legislation before, and under, the Legislation Act 2012

Before Legislation Act 2012Under Legislation Act 2012
Drafting: Instruments to be drafted by PCO
Statutes Drafting and Compilation Act 1920 s 4(1)(e)
Drafting: Instruments to be drafted by PCO
Legislation Act 2012 (LA) s 59(2) - s 59(2)(d) discretion
Incorporation by reference
General law

Special regimes
Incorporation by reference
General law
LA 2012 Part 3 subpart 2 - "instrument" (ss 48-49)
Special regimes
Acts and Regulations Publication Act 1989 (ARPA) "SR series"
[Statutory] "Regulations" (ARPA 1989 s 2)
Specific status provisions
Discretionary publication under ARPA 1989 s 14
LA 2012 "LI series"
"Legislative instruments" (LA 2012 s 4)
Specific status provisions
Discretionary publication under LA 2012 s 14
Regulations (Disallowance) Act 1989 (RDA) s 4
LA 2012 s 41
"regulations" - RDA 1989 s 2
Specific status provisions

"disallowable instruments" (LA 2012 ss 37 to 40)
Specific status provisions

Interpretation Act 1999 (IA) s 29 "regulations" - para (e)
IA 1999 s 29 "regulations" - new para (e)
Revocation of spent instruments
ARPA 1989 s 16 - "regulations" (s 16(3))
Revocation of spent instruments
LA 2012 s 15 - "instrument" (s 15(4))
Commencement and effective dates of Legislation Act 2012 provisions
  • On 12 December 2012 (day after Royal assent date), these provisions commenced: Part 1 (general provisions), subpart 3 of Part 2 (revision Bills), and Part 4 (PCO) except for Part 4 repeals, etc, related to publication, reprints, disallowance, and incorporation by reference
  • On 1 July 2014 or an earlier date appointed (likely to be in the third quarter of this year), these provisions commence: Subparts 1 and 2 of Part 2 (publication and reprints), Part 3 (subordinate legislation: disallowable instruments and incorporation of material by reference), and related Part 4 repeals, etc [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]
  • Section 79 lets the SR series run until end of year in which ss 11 and 12(2)(d) commence.

Back to top

March 2013: New Category 4 for Bills

Please note that a new category has been added to the 2013 Legislation Programme. A new "Category 4: To be passed under extended sitting hours" has been inserted. All Statutes Amendment Bills and all Treaty settlement Bills are listed in Category 4 for 2013.

Previous Categories 4 to 7 have all been moved down one place to be Categories 5 to 8. For example, what used to be Category 4, "To be referred to a select committee in 2013", is now Category 5, and so on.

Back to top

December 2012: Criminal Procedure Act 2011

The Criminal Procedure Act 2011 (the CPA) is expected to be fully in force by no later than 17 October 2013. A commencement date earlier than this may be appointed by Order in Council. Some selected aspects are already in force (see below).

The CPA:

  • provides for a new method of categorising offences for procedural purposes (replacing the summary/indictable distinction)
  • changes the procedure to be used for commencing a criminal proceeding
  • provides new limitation rules
  • introduces a formal case management process
  • provides legislative authority for courts to give defendants sentence indications
  • abolishes committal hearings but continues to provide for the filing of formal statements and oral evidence orders
  • rewrites appeal provisions with some substantive changes
  • replaces the provisions in the Criminal Justice Act 1985 relating to public access and restrictions on reporting
  • provides for the making of criminal procedure rules
  • changes some of the terminology used.
Existing criminal procedure provisions replaced by the CPA

The CPA revokes and replaces most of the Summary Proceedings Act 1957 and the provisions in the Crimes Act 1961 about procedure (Part 12) and appeals (Part 13). It also repeals Part 2A of the District Courts Act 1947 (criminal jurisdiction of District Courts in respect of indictable offences).

Categories of offences
  • Offences are no longer classified as summary or indictable. Instead, an offence will fall into one of four categories (numbered 1 to 4). See section 6 of the CPA. With the exception of offences in category 4 (which are the most serious offences and are listed in a schedule to the CPA), the category of an offence is determined by its penalty.
  • There will be no need for the offence provision to state the category that an offence is in. For example:
    • (old) "A person who [ ... ] commits an offence and is liable on summary conviction to [ ... ]"
    • (new) "A person who [ ... ] commits an offence and is liable on conviction to [ ... ]".
  • The category that an offence is in determines the basic procedure that applies to it. See section 4 of the CPA for an overview.
Infringement offences
  • Infringement offences proceeded against by the filing of a charging document are category 1 offences. See section 6.
  • If a court hearing is requested in relation to an infringement offence where an infringement notice was issued, the CPA applies. See section 21(8) of the Summary Proceedings Act 1957 (as to be amended by the Summary Proceedings Amendment Act (No 2) 2011).
  • Note that the CPA provides that "infringement offence" has the meaning given to it in section 2 of the Summary Proceedings Act 1957. The decisions in Wallace Corporation v Waikato Regional Council, Builders Corner and Total Solutions v Department of Labour, and Down v R have provided that not all infringement offences come within that definition.
  • Sections 21 and 78B of the Summary Proceedings Act 1957 are still in force. Section 78A (no conviction to be recorded for infringement offence) is repealed and replaced by section 375 of the CPA.
Procedure for commencing criminal proceedings

The CPA continues the current default position that any person may commence a criminal proceeding. See section 15.

Proceedings will be commenced by the filing of a charging document - replacing the laying of an information and filing of an indictment.

Limitation periods for commencing criminal proceedings

The CPA has new rules about limitation periods. See section 25. Many Acts continue to provide different limitation periods.

Case management

Subpart 3 of Part 3 of the CPA provides for a case management process to commence if a defendant charged with a category 2, 3, or 4 offence pleads not guilty. Case management involves the completion of a case management memorandum and in some cases a case review hearing in court.

Sentence indications

A defendant may apply for a sentence indication. This is a statement by the court that, if the defendant were to plead guilty to the offence alleged in the charge or any other specified offence, the court would impose a particular type and quantum of sentence. These provisions came into force on 5 March 2012.

Abolition of the committal stage

There is no longer a step in the proceeding known as committal for trial (also formerly known as preliminary hearings or depositions hearings).

Formal statements will still be required to be filed by the prosecution in any case going to a jury trial (currently a part of the committal process).


Part 6 of the CPA carries over most existing criminal appeal rights but rationalises appeals at the lower end. Appeals from Justices of the Peace or Community Magistrates will be heard by a District Court presided over by a District Court Judge. Existing provisions about appeals against existing pre-trial decisions, appeals against conviction, and appeals against sentence are largely carried over (subparts 2 to 4). Appeals against a finding of or sentence for contempt of court, appeals against costs orders, and appeals against suppression orders are revised and dealt with in their own subparts (subparts 5 to 7). Appeals on questions of law will no longer involve a case-stated procedure. New provision is made for the reference by the Solicitor-General of questions of law in criminal matters to the Court of Appeal or the Supreme Court (subpart 11).

Public access and restrictions on reporting

The provisions in subpart 3 of Part 5 of the CPA replace various provisions in the Crimes Act 1961, the Criminal Justice Act 1985, and the Summary Proceedings Act 1957. Beginning with the general rule that proceedings are open to the public, the provisions deal with the closing of the court to the public in certain cases and orders relating to the publication of evidence. The new rules came into force on 5 March 2012.


The CPA provides for the making of rules about criminal procedure. This process is a Rules Committee process. See section 386. The new rules (which will come into force at the same time as the rest of the CPA) will apply to criminal proceedings in a District Court or the High Court. It is likely that the existing rules governing criminal appeals to the Court of Appeal or the Supreme Court will remain in place and be consequentially amended by separate sets of rules.

  • Charging document filed: A criminal proceeding is commenced by the filing of a charging document, not the laying of an information.
  • Defendant: A person charged with an offence is called a defendant. The term "accused" is no longer used.
  • Prosecutor: The person conducting a proceeding against a defendant is called the prosecutor. The term "informant" is no longer used (except in the provisions about infringement offences that remain in the Summary Proceedings Act 1957).
  • Trial: The substantive hearing of an offence is referred to as the "trial" in all cases. The terms "summary hearing" and "defended hearing" (previously used in legislation or in texts etc in relation to the substantive hearing for a summary offence) are not used. The term "hearing" is widely used in the CPA. It includes a trial, but is wider than that - for example including any pre-trial hearing.
  • Crime: Although the term "crime" remains in some contexts - for example the Crimes Act 1961 - the term to use is "offence". The definition of "crime" in section 2 of the Crimes Act 1961 is repealed. That definition provided that a crime is "an offence for which the offender may be proceeded against by indictment".

Back to top

July 2012: Criminal infringement regimes: Ensuring pattern and clarity by instructing on key requirements

In Down v R [2012] NZSC 21 at [36], William Young J's "dispiriting conclusion" was that criminal infringement regimes lack consistent legislative pattern. The Judge also expressed the "view that those responsible for the drafting ... have sometimes lost sight of the Summary Proceedings Act [1957 (the SPA)] provisions". A comprehensive legislative review is, the Judge suggested, warranted.

The PCO has checked its current drafting practice to ensure that it is consistent and effectual in relation to the key points at issue in Down. This check of drafting practice raises, if you are instructing the PCO in respect of criminal infringement regimes, these key requirements:

  • Ensure proposals to create or vary criminal infringement regimes have been consulted on with the Ministry of Justice, and are covered, fully, by specific policy approvals.
  • Indicate the intended process for prosecuting the infringement offences, especially if that process departs from the standard SPA infringement offence process (say, if infringement offences are to be prosecutable only by infringement notice, or a special defence is needed).
  • Indicate the intended penalties for the infringement offences, especially if they depart from the usual pattern of infringement fee or (if a hearing occurs) fine up to a maximum and any other orders, plus prescribed costs (say, if an infringement fee will be the only penalty, or additional consequences, such as demerit points or forfeiture, may or must follow).
  • The Down case shows some Acts' criminal infringement regimes are "independent", so their offences are not for SPA purposes infringement offences to which the SPA s 21(1)(a) leave requirement and the SPA s 78A bar on convictions apply. If the prosecutor proceeds by laying an information or (after full commencement of the Criminal Procedure Act 2011) filing a charging document, no leave is required for the prosecution, and a conviction and criminal record can be entered and created. So, for an independent infringement offence, whether the prosecutor seeks a conviction and a sentence dependent on a conviction (such as a sentence of imprisonment) is, as Justice McGrath says in Down (at [30]), "entirely a matter of prosecutorial judgment in every case".
  • Indicate if you propose to create independent infringement offences that, if the prosecutor chooses, can be prosecuted (with or without leave under the SPA s 21(1)(a)) by laying an information or filing a charging document, and that can result in a conviction.
  • BUT NOTE THAT the Ministry of Justice has indicated that it is strongly opposed to the creation of new independent regimes - which can result in a conviction - pending its review of infringement regimes.
  • Infringement offences should not be punishable by imprisonment. If imprisonment is an appropriate penalty for serious cases, it can attach to non-infringement offences for the same conduct as is covered and punished (if less serious) by the infringement offences.
  • Indicate, for any regime (SPA or independent), whether the SPA s 21(1)(a) leave requirement is to apply for an offence prosecuted by laying an information or filing a charging document.

Back to top

July 2012: Amended Standing Orders: Implications for first reading speeches

In order to ensure that select committees have sufficient time to consider Bills, the Standing Orders now provide that Ministers' instructions to select committees and/or reduced select committee consideration of Bills are debatable motions.

For example, if the Minister in charge of a Bill intends to reduce the amount of time that the committee has to consider the Bill to less than four months, a debate is allowed that is separate from the first reading debate. Members may speak for ten minutes in this debate, which is not time-limited and concludes when no further members seek the call or when a closure motion has been attempted.

It will be necessary to allow sufficient House time for this debate when planning a Bill's timetable.

For more information on first reading debate procedures, see the Cabinet Office circular CO (12) 4.

The Standing Orders of the House of Representatives are available from the Parliament website.

Back to top

July 2011: Procedure for introducing a Bill

When a Government Bill is ready for introduction, the process is set in motion by the drafter. It is provided here as some useful background for instructors:

The drafter requests that the Bill be printed for the House, and arranges for two copies to be sent to the Leader of the House.

The drafter also sends copies to the Prime Minister's Office, the Minister in charge of the Bill, the Bill of Rights team at the Ministry of Justice, and the instructors.

Under Standing Order 270 [now Standing Order 272], a Government Bill is introduced on a sitting day by the Leader of the House informing the Clerk by 1 pm on that day of the Government's intention to introduce the Bill. One of the Leader of the House's copies is attached to the form advising of the intention to introduce. The Office of the Clerk receives separately the House copies of the Bill, which are embargoed until the introduction of the Bill is announced in the House shortly after it starts sitting.

If the Bill is to be introduced on a working day on which the House is not sitting, then the 1 pm limitation does not apply. However, if the Bill is to be introduced outside of normal working hours, the drafter will have to make special arrangements with the Office of the Clerk.

The Bill will normally be published on the New Zealand Legislation website on the day of introduction.

Back to top

September 2010: Avoiding discrepancies between commentary and Bill

We have noted a developing trend for any discrepancies between the reported-back version of a Bill and its commentary to be used by interested parties as a reason to press for amendments to the Bill, or later, to the Act.

It is therefore critical for departmental officials to check the commentary carefully before the select committee reports back to the House, and to discuss any discrepancies between commentary and the Bill with the PCO.

Back to top

© Crown copyright 1997–2017