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PCO Quarterly

The PCO's quarterly newsletter for instructing departments

cover of March 2017 PCO QuarterlyThe 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:

October 2021
March 2021
December 2020
September 2020
May 2020
December 2019
October 2019
July 2019
March 2019
December 2018
September 2018
June 2018
April 2018
December 2017
October 2017
July 2017
March 2017
December 2016
July 2016
May 2016
December 2015
September 2015
March 2014
September 2013
June 2013
March 2013
July 2012
July 2011
September 2010

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October 2021: Reflect, review, reshape

Tēnā koutou katoa

This is my first editorial since I stepped into the role as Chief Parliamentary Counsel. I am very proud of the work of this organisation and the people who are a part of it. I am grateful for the opportunity to lead the PCO through the next stages of our development as an organisation.

Taking up my new role gives me an opportunity to deliberately take stock of what we have done so far, and where we can deliver further. This will be particularly important when the Legislation Act 2019 and Secondary Legislation Act 2021 start on 28 October 2021 (see more on this below).

So in the last few months I have been seeking out others’ perspectives on the PCO and listening to their thoughts on where we can better partner with them or grow further. I have already learned a lot from talking with public sector leaders, chief legals, Māori lawyers, staff at the PCO, the judiciary, and others across the system. I am continuing to meet with people both within and outside the system to learn more.

As a first key step, I have reshaped the PCO’s leadership structure to better enable us to deliver on our objectives, including our leadership role for stewardship of New Zealand’s legislation. As a result, we now have four groups: the Drafting group, a new System and Stewardship group, the Access and Digital Strategy group, and the Business Services group.

The new System and Stewardship group is responsible for providing system and stewardship initiatives for the PCO as whole. This includes supporting LDAC, standardisation, and our guidance and education initiatives on legislation that the PCO does not draft. Most critically, this group will develop the systems, processes, and organisational capability for us to progress our reach in supporting the Crown as an effective te Tiriti partner.

We have also now integrated our digital strategy team with our publication services into the renamed Access and Digital Strategy group. This enables end-to-end system design, strengthening our focus on access for end users.

This focuses our Business Services group on the critical services needed to support the organisation as a whole, and the Drafting group on our core work of delivering the Government’s legislative programme.

Most exciting is that I am now able to welcome four new members to the PCO’s Executive Leadership Team:

  • Richard Wallace as Deputy Chief Parliamentary Counsel, Drafting
  • Karl Simpson as Deputy Chief Parliamentary Counsel, System and Stewardship
  • Michelle Groves as Acting Deputy Chief Executive, Access and Digital Strategy
  • Vicki Scott as Deputy Chief Executive, Business Services.

The mix of skills, experience, and relationships in this team provide the strong collective and individual leadership the PCO needs. You’ll know some of them already, but please check out our Meet the team page on pco.govt.nz to learn more about those you don’t know so well.

Now that the new ELT have come on board, we are looking for others to help us in new roles. Keep an eye out for opportunities to join us in our next phase.

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October 2021: Legislation Act commences!

It is with great excitement that we announce the Legislation Act 2019 and Secondary Legislation Act 2021 will commence on 28 October 2021.

What does this mean for you?

These Acts pull together and refresh the framework for legislation—touching on every aspect of its development, making, publication, and application in practice. Most importantly they redefine the category of secondary legislation itself.

As with any new legislative regime, it’s as important to understand the changes that are happening to support the legislation, as the legislation itself.

View a high-level snapshot of the changes: Legislation Act changes »

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October 2021: Secondary legislation—tools for makers under Legislation
Act 2019

New tables to identify publication and parliamentary oversight requirements

When the Legislation Act 2019 and the Secondary Legislation Act 2021 commence on 28 October, we will insert tables under all provisions that identify a power to make secondary legislation. These tables—which we have dubbed PPD tables, for Publication, Presentation, Disallowance—will spell out the requirements for secondary legislation made under the provision. This will provide clarity for both the makers and users of legislation.

The information in the table will vary depending on the requirements set out in the Act, but here is a sample of the most common table:

publication, presentation, disallowance sample table

We will add the tables as part of updating the hundreds of Acts amended by the Secondary Legislation Act, so not all tables will be in place on 28 October. If you have any queries about PPD tables in legislation that your agency administers, please contact the PCO’s Publications Unit at publications@pco.govt.nz.

New template helps meet minimum standard for Gazette notification

The Legislation (Publication) Regulations 2021 are made under the Legislation Act 2019 and come into force on 28 October 2021. These regulations set out requirements for makers of certain secondary legislation to publish, notify, and make available that secondary legislation. The requirements will apply to empowering provisions enacted after 28 October.

We have created a Word template for notifying secondary legislation in the Gazette that complies with the new regulations. If you would like a copy of the template, contact the PCO’s Publications Unit at publications@pco.govt.nz and we will share it with you.

New visibility of CPTPP transparency obligations

Some secondary legislation must comply with Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) transparency obligations. Since 30 December 2018, New Zealand has been required to make regulations of general application relating to trade matters covered by the CPTPP available on a single official website, ie the NZ Legislation website.

The PPD table will note if consideration needs to be given to CPTPP requirements, making it easier for agencies to identify their CPTPP transparency obligations. Here is an example:

publication, presentation, disallowance sample table possible CPTPP obligations

We have issued a new Legislation Act (Publication for International Transparency) Direction 2021. This is the same as the 2018 direction but with updated references to the Legislation Act 2019. It sets out what details about the relevant secondary legislation must be published by the maker, and the information that must be provided to the PCO.

Please do take a look at your legislation when the tables are in place to check whether you have CPTPP transparency obligations and check you are meeting them.

See CPTPP publishing requirements for more information.

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October 2021: Legislation Guidelines updated for Legislation Act 2019

The Legislation Design and Advisory Committee has updated its Legislation Guidelines to reflect recent changes made by the Legislation Act 2019, the Secondary Legislation Act 2021, and a number of other changes to key pieces of legislation. The main changes are to Chapter 13 (Interpretation and application of legislation) and Chapter 14 (Delegating law-making powers).

The Cabinet Manual requires Ministers to confirm compliance with the Legislation Guidelines when submitting:

  • bids for the legislation programme
  • Bills for introduction
  • regulations to the Executive Council.

A Cabinet Office circular will be issued to notify Chief Executives, Chief Legal Advisers, and their agencies of the updated Legislation Guidelines and these requirements for papers.

The updated Legislation Guidelines will soon be available on LDAC’s website ldac.org.nz, joining the other useful information on the site about legislative design and the role of the LDAC.

Any queries, please contact the LDAC secretariat on Contact.LDAC@pco.govt.nz.

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October 2021: All PCO email addresses are @pco.govt.nz

A couple of years ago our email addresses changed from @parliament.govt.nz to @pco.govt.nz, but the old format continued to function until recently.

Now only emails with the @pco.govt.nz format will reach their destination, so if you don’t get a reply as you expected, please check the address was current.

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March 2021: Realising the vision

Kia ora katoa

As some of you may already be aware, I have come to the end of my term as Chief Parliamentary Counsel. As I prepare to hand over to my successor, whoever that will be, I have had the opportunity to reflect on the last five years.

When I first took office the senior management team decided to examine the role of the PCO as legislative stewards. When considering this it became clear that although the PCO has a leadership role, it is not the sole legislative steward. Indeed every public service chief executive has a statutory responsibility to exercise stewardship of the legislation they administer. We recognised the need to work collectively with departmental agencies and other key participants in the wider legislative system.

To better reflect this role and the need to work collectively with others, we revised the PCO’s vision and purpose statements. We landed on a vision of Great Law for New Zealand. In order to achieve this we decided, after consultation, that law needs to be fit for purpose, constitutionally sound, and accessible for all users. Many of you will be familiar with “the wheel” and I hope you have found it a useful tool when faced with a legislative project.

The biggest project during my five-year term relates to the access part of the wheel. The Access to Secondary Legislation Project has successfully delivered on the Government’s commitment to define and implement a new category of law, to be known as secondary legislation. A significant number of you have been involved with this project. By the time you read this PCO Quarterly we will have reached a huge milestone with the enactment of the Secondary Legislation Act 2021. This has been a massive undertaking and we could not have done it without your time, effort, and support. It has been a shining example of how we all work together to support our legislative stewardship roles and aim for Great Law for New Zealand.

Another outstanding example of collaboration across government was the legislative response to the COVID-19 pandemic. Getting the necessary legislation through the policy and drafting to enactment was a mammoth task requiring huge hours and efforts from everyone involved.

Finally, it has been a pleasure and a privilege to not just lead the PCO but also to work with so many dedicated and passionate colleagues over the years.

Ngā mihi nui

Fiona Leonard
Chief Parliamentary Counsel

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March 2021: Plain language: more resources to support our checklist

The PCO uses our own plain language standard and checklist to help us deliver on our commitment to plain language in drafting and in all our communications.

We have also developed supporting documents that focus on specific elements of the checklist. These documents give practical examples of best practice, problem-solving hints, and guidance about when to depart from the standard.

Our collection of supporting documents has been growing. The latest titles are:

  • 3.8 Use bold, underlining, and italics sparingly and consistently
  • 4.6 Headings: Have a clear and consistent hierarchy
  • 6.2 Make your writing active wherever possible
  • 8.2 Gender-neutral language
  • 8.5 Definitions that are helpful and are not contrived to create artificial concepts
  • 8.8 Avoid over-use of noun strings
  • 8.10 Avoid archaic language.

The numbers cross-reference with our Plain Language Checklist.

These tools are available on the PCO’s corporate website as a resource for departments and agencies responsible for drafting secondary legislation. We will add to them as we develop more supporting documents.

Find Plain language under the Instructing the PCO tab.

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March 2021: Secondary legislation reforms

The Secondary Legislation Act 2021 was enacted on 24 March 2021. We at the PCO are hugely grateful for all the support we have received over the last four years from across the public service in delivering this 330-page Act.

We expect it to be brought into force together with the Legislation Act 2019 later this year, probably around October.

There is nothing that agencies or makers of secondary legislation have to do right now. The legal requirements (about publication, disallowance, and presentation) for secondary legislation under existing powers will stay the same when the two Acts are brought into force. The Acts lay the foundation for multiple future improvements. However, the PCO will make sure that agencies and makers of secondary legislation are consulted in advance of these future changes, and given good notice.

“Secondary legislation” replaces “legislative instruments” and “disallowable instruments”

The reforms establish one unified and simple category of secondary legislation, where previously overlapping and confusing categories existed. They resolve problems with the previous categories that Parliament’s Regulations Review Committee identified in its Inquiry into oversight of disallowable instruments that are not legislative instruments.

Publishing requirements

For secondary legislation made under existing Acts (ie Acts in force before the reforms), there is no change for now to how it must be published. The current publication requirements will continue exactly as they were previously, providing a smooth transition. These publication requirements will be removed from the empowering provisions themselves, but the PCO will show them in a simple table under each empowering provision.

For secondary legislation made under new Acts and empowering provisions (ie Acts and provisions enacted after the reforms), uniform publishing requirements will apply:

  • Secondary legislation drafted by the PCO will continue to be published in full on the New Zealand Legislation website and notified in the Gazette.
  • The standard requirements for secondary legislation drafted by bodies other than the PCO will be set by regulations yet to be made. The Regulations Review Committee recommended that the regulations require the secondary legislation to be published on an internet site maintained by or on behalf of that body, and notified in the Gazette.

There is likely to be scope for the standard publication requirements to be varied in occasional cases, but one of the purposes of the reforms is to bring greater standardisation. So variations are expected to be rare.

Parliamentary oversight

The reforms make clear that all secondary legislation can be disallowed by Parliament, unless Parliament has given a specific exemption. This codifies the existing position, but more clearly than before.

Who drafts legislation?

The reforms do not affect who drafts legislation, although there will be power over time to change this.

What’s next?

As noted above, we expect that the Legislation Act 2019 and the Secondary Legislation Act 2021 will commence in roughly six months. This will give time for the necessary implementing regulations to be made.

Resources

For more information about secondary legislation and the reforms, see the PCO’s corporate website: Secondary legislation.

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March 2021: Legislative statements: Turning Policy Into Law updated

New in the 2020 Standing Orders: a legislative statement is a paper presented by a Minister in charge of a Bill under Standing Order 272.

Presenting a legislative statement for each reading of the Bill is considered to be good practice. The legislative statement is intended to take the place of the Minister reading from a prepared speech, and should therefore contain the more technical details of the Bill, supplementing the Bill’s explanatory note.

Presenting such a statement enables the Minister to make a more wide-ranging, political speech in the debate, rather than focusing on the technical details of the Bill. It also enables other parties to understand the Bill in more detail, encouraging better debate on the Bill.

This statement should be apolitical. The Minister’s speech can then focus on high-level principles of the Bill and include political aspects to enable wide-ranging debate. Instructing agencies should ensure the statement accurately describes the technical details of the Bill as the statement will form part of the related extrinsic material that may be used when interpreting the resulting legislation. There is no set format for legislative statements. However, most use ministerial headed paper with basic headings.

Legislative statements for the second and third readings should describe any changes made to the Bill at the select committee and committee of the whole House stages.

Legislative statements that have been presented can be found on the Parliament website.

We’ve updated the new step-by-step guide for instructors, Turning Policy Into Law, to include information about legislative statements. In the FAQs we answer the question “Do I need to prepare a legislative statement and what information should the statement contain?”. And “legislative statement” is now defined in the Glossary.

Check for updates to Turning Policy Into Law on the How To Use page, where all substantive changes are listed.

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March 2021: From our FAQ files: changes to the legislation programme

FAQ 1.11 “What if the Minister wants a Bill that is not on the current legislation programme?”

“It is preferable for Bills to be included on the legislation programme at the beginning of the year, but new Bills can be added to the programme during the year. In this case, you need to seek a priority for the Bill (as well as policy approvals and authority to instruct PCO) in your Cabinet policy paper.”

See this and other FAQs in Turning Policy Into Law at policy-to-law.pco.govt.nz/faqs.

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December 2020: Ngā mihi o te Kirihimete me te Tau Hou

Fiona LeonardThe end of 2020 is nearly upon us—and what a year it has been.

This year threw up huge challenges for us, as it did for everyone.

Some were expected (the general election) and some less so (COVID-19)—despite all our disaster planning and preparedness.

The collaboration between counsel, instructors, and officials that we bedded in last year helped get us through.

Through the succession of alert levels, our staff coped admirably. The pandemic imposed unprecedented demands on us: all staff working from home, all meetings held by Zoom or other virtual means, the massive extra workload of COVID-specific legislation. So far the Government has produced 14 Acts and more than 80 Legislative Instruments—and counting.

Building up to the general election, we were busy re-prioritising tasks so the Government could meet its legislative goals. And then … another COVID cluster popped up in Auckland. The Government postponed its dissolution of Parliament and extended the election date. Between these two complex, fraught developments, it was a perfect storm. So, a big pat on the back (or elbow nudge or shoulder bump) to everyone involved in the legislation process for your commitment and efforts.

However, despite everything, we have achieved a great deal.

Our interactive resource for instructors Turning Policy Into Law is now live (see item below). It provides information “bites” on key steps in a Bill’s journey, more detailed FAQs, and links to other resources. I hope you find it useful.

The Secondary Legislation Bill has progressed through its select committee stage, and is awaiting second reading. You can follow developments in secondary legislation on this website.

Our Plain Language Initiative has gathered pace. We’ve been working to expand the range of documents supporting our plain language checklist. You can expect to see these added to the plain language resources on the corporate website soon.

We have focused our work on standard drafting on empowering provisions, transitional and savings provisions, and infringement offences. Standard drafting has the potential to reduce complexity for users and make laws more legally effective, to name just two of the benefits. The work is supported by an advisory board with representatives drawn from instructors, LDAC, Crown Law, and other drafting agencies.

Our Strategic Intentions document for 2020–24 sets out our road ahead and the strategic initiatives we’ll be focusing on.

The new, majority Labour-led Government is in place and ready to “crack on” with its legislation programme. You will be busily considering your priorities and preparing draft bids for 2021—and the whole of the 53rd parliamentary term. See page 3 for more on legislation bids.

The many new MPs as well as parliamentary staff have needed a crash course on the legislative process. We have contributed to various activities at Parliament, including mock select committees and ministerial induction.

The pandemic did provide a few disruptions to normal processes—including this very publication. The masthead still says “PCO Quarterly”. But it won’t have escaped your notice that you’ve only received three issues this year. Maybe for now it should be renamed “PCO Triannual”?

Finally, I’d like to stress how proud I am of all PCO staff. And I thank the many agencies and departments for their support. So far New Zealand is tracking well through the pandemic, thanks to the efforts of our “team of 5 million”. Though who knows what twists and turns we can expect yet.

Meanwhile, enjoy your well-earned summer break. Stay well. And we look forward to working with you again in 2021.

Fiona Leonard
Chief Parliamentary Counsel

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December 2020: 2021 Legislation Programme—FAQs

It’s that time of year again for you to put together your bids for the 2021 Legislation Programme, due at the Cabinet Office by 29 January 2021.

See Cabinet Office Circular CO (20) 10: 2021 Legislation Programme: Requirements for Submitting Bids, released on 4 December.

The circular asks Ministers and departments to consider legislation priorities, not only for 2021, but for the entirety of the 53rd Parliament as much as possible. This is a change from previous years.

To support the development of your bids, the guidance below covers this new requirement as well as other questions we are often asked during this time.

Provide realistic expectations for the development of legislation in your LEG bids. If in doubt, err on the side of caution. Development and progress of legislation generally takes longer than anticipated.

You will need clear justification if your bid proposes compressed timeframes through any stage of the policy or legislative process.

Please remember to consult your PCO drafting team manager on your draft bids.

How do I prioritise my bids for the 53rd Parliament?

When prioritising your bids over the three-year Parliamentary term, take the following matters into account:

  • the nature and extent of the proposed amendments
  • the time required to adequately develop and consult on the policy
  • how many Bills your department is progressing
  • providing enough time for governmental, departmental, and public engagement
  • integrating legal analysis into the policy development process
  • realistic planning to support the legislative process.

Remember to be realistic about the time needed for ministerial and cross-party consultation, and ensure that this is done well to avoid later delays and wasted work.

How do I estimate timing for a legislation bid?

The bid template asks you to give dates for each stage of a Bill’s progress. You need to provide a realistic estimate of timing to avoid surprises. This applies even though a lot of factors may change during the process (don’t just put “unknown” in the template).

In addition to consulting your PCO drafting team manager, there are a number of matters to consider when thinking about the timing in your bid:

Time to draft a Bill is affected by both the size and complexity of that Bill
  • A large Bill requires more drafting and checking, even if it is not very complex.
  • A 50-clause Bill of medium complexity generally takes 3 months from instructions received to ministerial consultation before LEG.
    • This takes into account reviews by you, consultation with other departments and LDAC, quality assurance checks by the PCO, and the NZBORA vet.
    • This does not take into account delays in reviewing the Bill, drafting flowing from policy changes, or delays due to consultation.
  • Time required to draft a Bill is affected by how settled and clear the policy is. If short cuts are made during the policy development process, any unresolved issues will increase the drafting time needed overall.
  • You will need to take into account your own capacity to turn around a draft Bill and respond to queries. Timing here presumes you will review the draft and provide feedback promptly.
  • If you have an exposure draft process, you will need to add in the time the exposure draft will be out for consultation. Add a further 8 weeks minimum to allow for further instructions and for the PCO to make the changes.
  • Delays in the policy process cannot be made up by shortening the drafting time.
How do I estimate the size and complexity of a Bill for a legislation bid?
Estimating size

We consider Bills to be:

  • small if they have up to 20 clauses
  • medium if they have between 20 and 80 clauses
  • large if they have more than 80 clauses (these will often be replacements of Acts, or multi-pronged amendments to a number of Acts).

When estimating the size of an amendment Bill, you need to take into account the number of amendments proposed (not just the number of sections in the principal Act you need to amend).

Estimating complexity

In assessing whether a Bill has low, medium, or high complexity, you need to look at the policy, legal, and drafting dimensions.

The length of time spent by a department developing the policy will often be a guide to how long you need to allow for the rest of the process and how complex the Bill is likely to be. For example, if the policy work has taken many months, this may indicate that the Bill is of medium to high complexity.

Complexity may be affected by:
  • the use of difficult or novel (rather than established) concepts
  • the number of existing Acts that are affected, and the degree of complexity of the existing legislation you are amending
  • the extent of change required
  • how strongly related the changes are (well targeted) vs having many initiatives that are weakly related
  • the degree to which you expect policy to be settled vs in flux during the process
  • having multiple commencement dates or complicated transitional provisions
  • whether the legislation being amended is already heavily amended
  • whether you intend to include a lot of detail in the Bill.
How do I provide bids for the full 3 years of the parliamentary term?

The Cabinet circular asks you but also to signal Ministers’ highest priority legislative intentions for the entirety of the 53rd Parliament, where possible.

If possible, it will be helpful for you to provide bids for priorities for the 2022 and 2023 years, with indicative dates in the template.

If the bid will not have a priority in 2021, it would be useful for you to propose a priority together with the relevant year. So, for example, if you will only obtain Cabinet policy approvals and provide instructions to PCO in 2022, you could propose a priority of category 5 for 2022.

Why do I need to include an estimated timeline for the associated secondary legislation?

The Cabinet Office circular also asks you to provide timing estimates for secondary legislation associated with your Bill. This relates to secondary legislation that will be needed, within 12 months of enactment, for your Bill to commence and operate effectively (meaning, it is core to the regulatory package contemplated by the Bill).

The circular requires you to:

  • make policy decisions for associated secondary legislation before the Bill is read for a first time
  • send drafting instructions for associated secondary legislation to the PCO before the Bill proceeds to committee of the whole House stage.

Your PCO drafting team manager looks forward to receiving your draft bids for review as soon as possible.

How do I engage with the Legislation Design and Advisory Committee?

Departments are required to indicate in a bid if a Bill will be referred to the LDAC for advice and, if not, provide an explanation why.

Information about what kinds of Bills should be referred to the LDAC is available on the LDAC website, including the factors to consider in deciding whether to consult with LDAC in relation to a legislative proposal.

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December 2020: Turning Policy Into Law—a step-by-step guide for instructors

A new online resource

This guide is an interactive tool for quick and easy access to information about each step in the legislative process.

Find it at policy-to-law.pco.govt.nz, or follow the link under the Instructing the PCO tab.

To get started, click on the Step-by-Step Guide graphic and explore. It will walk you through the legislative process, from idea to Bill to Act, or you can jump to whatever point you are interested in. You will find it answers most of your questions about the legislative process.

The guide includes:

  • the key steps in a standard process for Bills
  • the roles of instructors, drafters, and other key people involved at each step
  • tips for how to work best with others at key stages
  • more detailed FAQs that address particular issues that instructors regularly encounter
  • an Instruction Kit that includes templates and a planner for Bills to help work out timeframes for legislation
  • a Glossary.

To print the step-by-step guide, select Whole Step-by-Step Guide (Text Only) in the top menu. You can print this from your browser, or paste it into Word for printing.

We recommend using the graphic in any browser other than Internet Explorer.

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December 2020: 2020 Standing Orders released

The 2020 Standing Orders are available on the Parliament website in HTML, PDF, and Word formats. The new edition incorporates the changes adopted by the House following recommendations made by the Standing Orders Committee.

The significant changes made include:

  • Standard House sitting hours have changed: the dinner break will be 6 pm–7 pm on Tuesday and Wednesday, with the House rising at 5 pm on Thursday (SO 46).
  • Presiding officers have discretion to suspend or adjourn a sitting up to 5 minutes before or after the scheduled time, to avoid cutting off members’ speeches (SO 53(1)).
  • Petitions will be overseen by a new Petitions Committee, and rules for petitions have been rewritten (SOs 369–380).
  • The Petitions Committee can refer petitions to Ministers for them to respond to the House within 60 working days (SO 380).
  • More House time is to be spent debating non-legislative business, such as petitions and inquiries (SO 80).
  • Select committees can meet with remote participation by members (SOs 194(2) and 212).
  • One member from any party not represented in the membership of a committee can participate in the committee’s meetings (SO 214(4)).
  • Committees can hold joint meetings (SO 197) and make joint reports (SO 251(2)).
  • A procedure is set out for law-change engagement plans to recognise and encourage public engagement by the Government before Bills are brought to the House (SOs 280 and 281).
  • Members can jointly sponsor members’ Bills (SO 277).
  • Members’ Bills that receive the support of at least 61 members who are not members of the Executive will be introduced automatically without needing to win the ballot (SO 288).
  • Ministers can present legislative statements that provide formal remarks on the detail of Bills, so they can engage in free-flowing debate without reading speeches aloud (SO 272).
  • There’s a shorter delay before the second reading of a Bill—now available on the third working day after the select committee reports (SO 304).
  • The previous four-speech limit for members in the committee of the whole House has been removed, to encourage members to question the member in charge of a Bill.
  • Members can ask questions as well as making comments about ministerial statements (SO 365).
  • Rules about coverage of the House are less prescriptive (Appendix D).
  • A standard procedure is now in place for listed parliamentary papers to be examined by select committees, including emissions budgets and long-term insights briefings (SO 383 and Appendix E).

The Standing Orders Committee’s report also sets out a number of expectations for
how the rules and practices of the House will operate, including:

  • select committees should be smaller, with an average of seven members
  • Ministers should attend select committees more often, including to provide initial briefings on Government Bills
  • annual reviews can include hearing evidence from Ministers about results of spending
  • select committees should initiate more inquiries and briefings.

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December 2020: PCO Christmas/New Year closedown

The PCO will close at 3 pm on 24 December 2020 and will reopen on 5 January 2021. Normal working hours will resume on that day.

If you expect any urgent drafting work will be needed in the immediate lead-up to Christmas, or during the Christmas break, please discuss the likely requirements with your PCO drafting team manager as soon as possible.

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December 2020: Parliament’s sitting calendar for 2021

The dates Parliament will meet in 2021 have been confirmed. The House will resume on 9 February 2021. See the calendar on the Parliament website.

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September 2020: Goodbye to the 52nd Parliament

Parliament has at last dissolved this week … after the previous dissolution was put on “pause” for three weeks, following the decision to push out the election to October 17.

The last months of the parliamentary term have been some of the busiest. After the rush of COVID-19 legislation and the shift to alert level 1, the Government then re-focused its legislation programme, and used three different periods of urgency to enact about 40 Bills. This legislative push included many Bills that represented significant policy planks for the Government—and resulted in a substantial clearing out of the Order Paper before the election.

In stark contrast to this activity, the extra three weeks in the 52nd Parliament’s term have not resulted in more legislation. Only questions and debates were progressed in the House, and (see below) CBC is now the only Cabinet committee. However, legislative work continues apace in the PCO. Drafting is progressing for both Bills and secondary legislation as appropriate (as there is no caretaker convention before an election in NZ). And of course the COVID-19 order work continues thick and fast as a result of the resurgence in Auckland and the management of the borders. A huge thank you to everyone who has helped, and continues to help, with these orders: working, coordinating, and responding, often to very tight timeframes.

In addition, it’s worth highlighting that the House produced three important reports in August—take a look when you have a moment:

  • The Regulation Review Committee (RRC) report on its Inquiry into Parliamentary Scrutiny of Confirmable Instruments. This includes recommendations on what types of secondary legislation should be subject to the confirmation process (and when it would be inappropriate), removing the current “annual confirmable instruments” process, and the option of referring draft secondary legislation to the committee
  • The Review of Standing Orders 2020, reported by the Standing Orders Committee. This deals with issues like retaining the current approach to committee of the whole House (no limit on calls), expanding the types of “consequential” amendments that are allowed, providing for Bills to become omnibus at stages after introduction, allowing for policy amendments in revision Bills, and measures to encourage good pre-legislative processes
  • The RRC’s Briefing to review secondary legislation made in response to COVID-19. This was the result of scrutiny of 11 Bills empowering the making of secondary legislation and 110 instruments of secondary legislation in response to COVID-19. While the RRC felt that overall the secondary legislation successfully balanced key factors, it also noted that unclear drafting in places and sub-delegation without an express authority in the empowering legislation were concerns, particularly in the early stages of the response. It has recommended an all-of-government examination of COVID-19 secondary legislation (and powers to make that legislation) to seek ways of improving the quality of secondary legislation in future emergencies.

The PCO will work with others to advance Government responses to recommendations in these reports over the election period. We will also continue to update the Secondary Legislation Bill and prepare for its implementation (see below) while making other investments in our training and resources—ready for the 53rd Parliament!

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September 2020: Impact analysis requirements updated

Cabinet’s requirements for impact analysis, captured in CO (20) 2: Impact Analysis Requirements, were updated from 1 July 2020. The circular replaces CO (17) 3.

The requirements reflect minor process amendments following a review in 2017, and Cabinet decisions to introduce impact analysis exemptions for declared emergency situations and additional options for urgent regulatory proposals. One change is that Regulatory Impact Assessments are now known as Regulatory Impact Statements.

For more information see the Impact Analysis Requirements for Regulatory Proposals section of the Treasury website and Regulatory impact statement guidance on the PCO corporate website.

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September 2020: Climate implications of policy assessment requirements

Cabinet has updated its requirements in relation to estimating and disclosing greenhouse gas emission implications when certain types of policy proposals are presented to Cabinet. See CO (20) 3: Climate Implications of Policy Assessment Requirements.

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September 2020: Secondary legislation transition to business as usual

It is now four years since the PCO started work on a project to deliver on the Government’s commitment to define and implement a new category of law, to be known as secondary legislation.

Thanks to the combined work of many people in many agencies, the establishment phase of this huge piece of work is now almost complete. The PCO’s Access to Secondary Legislation project closed at the end of August and PCO staff have assumed responsibility for implementing the reforms. The formal project structure used to set up the reforms may have closed, but implementation work continues with the creation within the PCO of a dedicated joint drafting and access work programme.

We are grateful to staff in agencies and in the PCO who have worked collaboratively and tirelessly with us since the vision for secondary legislation was developed in 2016. Without your commitment, the current milestone could not have been achieved.

We would particularly like to thank all staff in agencies who went many extra miles to land their parts of the enormously detailed Secondary Legislation Bill (SLB). And those with whom we partnered to engage external makers, so that makers too can be ready for the reforms, and understand the expectations that lie ahead.

The report-back from select committee in June means we are in a good position to see the SLB progress in the new Parliament, with commencement possibly in the first half of 2021.

For agencies and makers, that means you still have time to consider how best to make your collections of secondary legislation accessible on a website, ready for when the reforms commence.

Last year the Government made a decision to decouple the legal reforms defining secondary legislation from the future requirement of centralised publication, and to extend existing or “status quo” publication requirements until a future decision on centralised publication is made.

The decoupling makes it even more important for makers to provide access to their secondary legislation from the commencement of the reforms.

It also means that, for now, you do not need to provide information about your “stock” of secondary legislation to the PCO.

As the PCO has been communicating to agencies and makers for some time now (via workshops, meetings, and our secondary legislation Technical Updates), makers are encouraged to use this time to complete the tasks of:

  1. finding all their secondary legislation
  2. making it all available (by putting it on your website)
  3. making it accessible on that website, ie:
    • consider revoking and replacing, so that each piece of secondary legislation you are responsible for is as easy as possible for users to digest
    • less optimal but still helpful—if you can’t revoke and replace it all, consolidate
    • consider also the user experience by providing a dedicated secondary legislation landing page
  4. continuing to keep your collection up to date by regularly adding any new secondary legislation to your online resource.
Read more about secondary legislation on the PCO website

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May 2020: PCO@home

It seems an age since we rapidly shifted our laptops from the office to the lounge, but we have been immensely busy with departments over the lockdown.

  • We have worked with Crown Law to put in place a coordinated process for making “immediate modification orders” under section 15 of the Epidemic Preparedness Act 2006, to enable some relaxation of current legal requirements. A number have progressed through the system now, and more are continuing to emerge.
  • We worked with departments to produce the COVID-19 Response (Urgent Management Measures) Legislation Act 2020.
  • We are working with DPMC to coordinate a second omnibus Bill for those matters that cannot be done through immediate modification orders. Counsel have been drafting furiously to enable the Bill and some other breakaway vehicles to be introduced as soon as possible.
  • We continue to work with departments on other key COVID-19 initiatives that Ministers wish to urgently progress. 
  • For at least the first half of the lockdown (but slowing now), work in select committees has continued on a wide range of Bills. Now most committees have received extensions.
  • A major non-COVID-19 milestone was the 1 May release of the referendum version of the Cannabis Legalisation and Control Bill. And the Climate Change Response (Emissions Trading Reform) Amendment Bill was reported back on 4 May.
  • The LDAC has also been running its subcommittees on Zoom to help officials with COVID-19 and non-COVID-19 legislation. See below for other LDAC news.

Where we can, we are continuing to progress “business as usual” legislation—but the Government’s priorities are firmly on COVID-19 matters, at least until the budget is complete, and we are working to those priorities.

Along with others in the public sector, we have been exploring the joys and frustrations of WFH—embedded with our families, learning Zoom etiquette, being glued to the PM’s and DG’s updates at 1 pm each day … the pleasures of daily work but without all the usual systems and equipment!

The shift to Alert Level 3 has not had a big impact on how we work. But there have been some changes:

For planning purposes, Parliament will be focusing on COVID-19 legislation before budget night on 14 May, and with budget legislation on 14 May. The week of 18 May is a non-sitting week. We expect that the Government will be carefully considering its legislative priorities for the week of 25 May onwards, given the limited House time remaining before Parliament rises on 6 August.

As always, communication is key and things change fast at present—so please keep in close touch with your team managers on drafting matters. And we look forward to seeing more of you in person at Alert Level 2!

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May 2020: News from the Legislation Design and Advisory Committee

LDAC Annual Report

The Legislation Design and Advisory Committee has recently issued its Annual Report for the period 1 July 2018 to 31 December 2019. The report has been published on the committee’s website.

New LDAC appointment

The committee welcomes Stuart McGilvray, Manager Public Law Team, Ministry for Social Development, as a co-opted member of the committee until 31 August 2020.

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December 2019: News from Legislation Design and Advisory Committee

New supplementary material

In the October issue of the PCO Quarterly, LDAC indicated that it would soon publish new supplementary material to the Legislation Guidelines on the LDAC website (ldac.org.nz).

Supplementary material provides in-depth guidance and information to complement the principles and guidance contained in the Legislation Guidelines. There are links from the relevant chapters of the Legislation Guidelines. Publication of supplementary material is an ongoing process.

Supplementary material to Chapter 13 of the Legislation Guidelines

This provides more in-depth guidance on:

  • designing purpose and principle clauses, including different types of clauses and matters for caution
  • designing commencement clauses, including general principles for designing them and their different forms.

Supplementary material on the use of exposure draft Bills

This provides information and guidance on:

  • what an exposure draft Bill is
  • when to release an exposure draft Bill, and why
  • the process for releasing exposure draft Bills.
New LDAC appointment

Earlier this year, LDAC welcomed Graeme Morrison as a co-opt member. LDAC is pleased to announce that Graeme has now been appointed as a member of LDAC for a term expiring on 30 June 2022. During the term of his co-opt appointment, Graeme provided a meaningful contribution to the work of the committee. He will be a valuable addition as a full member of the committee. Graeme is currently Policy Manager, Drafting, Policy and Strategy, at Inland Revenue.

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December 2019: Revision programme

Partnership Law Act 2019

The Partnership Law Act 2019, another Act arising from the revision process, received Royal assent on 21 October 2019 and comes into force on 21 April 2020.

It re-enacts the Partnership Law Act 1908 in up-to-date language and drafting style without changing the substantive effect of the law. The 1908 Act will be repealed on 21 April 2020.

The new Act brings forward rules for business partnerships that:

  • define a partnership
  • set out the rights and obligations between partners and with third parties
  • apply when partnerships end.

The Act applies to all partnerships regardless of when they were formed.

Schedule 3 of the Act contains a table that relates the old provisions to the corresponding new ones.

Legislation Act 2012 now provides further revision powers

A revision Bill can make further minor amendments to the effect of the law to:

  • resolve ambiguity in Parliament’s intent
  • update an Act to take account of technological changes, if that is consistent with the spirit and meaning of the law
  • ensure an appropriate division of matters between Acts and secondary legislation, by moving matters of detail into secondary legislation (from Acts) and matters of general principle into revision Bills (from secondary legislation).

See new section 31(2A) of the Legislation Act 2012, inserted by the Legislation (Repeals and Amendments) Act 2019.

Now consulting: Land Valuation Proceedings Bill

See more » 

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December 2019: Te Tiriti o Waitangi/Treaty of Waitangi Guidance

Cabinet Office Circular CO (19) 5, released on 22 October 2019, sets out guidelines agreed by Cabinet for policy-makers to consider the Treaty of Waitangi in policy development and implementation.

The guidance focuses on the texts of the Treaty. It sets out questions for policy-makers to consider in developing policy proposals so that the resulting policy appropriately recognises the influence the Treaty should have in the circumstances.

See CO (19) 5: Te Tiriti o Waitangi/Treaty of Waitangi Guidance.

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December 2019: New requirement: climate implications of policy proposals

Cabinet has set out new requirements for central government agencies to estimate and disclose the greenhouse gas emission implications when certain types of policy proposals are presented to Cabinet.

See CO (19) 8: Climate Implications of Policy Assessment Requirements.

You are likely to need a Climate Implications of Policy Assessment disclosure for Cabinet proposals where:

  • a key objective of the policy proposal is to decrease greenhouse gas emissions;
  • or the direct emission impacts are at or over the average emissions threshold of 250,000 tonnes per annum.

Consult the Ministry for the Environment early in the policy process if you expect significant emission impacts. Their website provides guidance and tools to assist agencies.

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October 2019: Plain language

The PCO established a plain language standard and checklist in 2017 that are designed to help us deliver on our commitment to plain language in drafting and in all our communications.

Our goals include:

  • making New Zealand’s legislation more accessible
  • improving the legal effectiveness of that legislation
  • making plain language the standard for how the whole office communicates.

As part of our plain language focus, we have been developing documents to support specific elements within the checklist. These documents give practical examples of best practice, problem-solving hints, and guidance about when it might be sensible to depart from the standard.

Twelve supporting documents are now available on the PCO’s website:

We will add to this collection as new documents are developed.

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October 2019: News from Legislation Design and Advisory Committee

Upcoming LDAC/PCO seminar

LDAC member Paul Rishworth QC and PCO counsel Ross Carter are presenting a seminar at the PCO entitled ”Mastering the past (and the current) in the future—recurring issues”.

This seminar will cover scenarios relating to transitional and savings provisions, backdated secondary legislation, and validating legislation. It will run from 9.30 am to 11.30 am on Thursday 24 October. Departmental lawyers and policy advisers interested in attending should contact LDACAdmin@pco.govt.nz by 17 October.

New supplementary material

LDAC will shortly be publishing material to supplement the Legislation Guidelines as outlined below. The purpose of the material is to provide more in-depth guidance and information to complement the principles contained in the Guidelines.

Supplementary material to Chapter 13 of the Legislation Guidelines

This will provide more in-depth guidance on:

  • designing purpose clauses, including different types of purpose clauses and matters for caution around purpose clauses
  • designing statements of principle, including the role of principles in legislation and areas for caution when using principle clauses
  • designing commencement clauses, including general principles for designing commencement clauses and the different forms of commencement clauses.
Supplementary material on the use of exposure draft Bills

This will provide information and guidance on:

  • what an exposure draft Bill is
  • when to release an exposure draft Bill, and why
  • the process for releasing exposure draft Bills.

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October 2019: New guide for central government engagement with local government

The Guide for central government engagement with local government aims to give central government agencies the guidance, tools, and resources they need to engage more effectively with local government. It was produced by a working group made up of central and local government representatives with support from the Policy Project team within DPMC, and launched by the Prime Minister on 19 June 2019.

The guide is available through the CabGuide (under Consultation on other cross-government issues), as well as from the Policy Project website and DIA.

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July 2019: More standard provisions to be developed

The PCO is aiming to increase the use of standard provisions across the statute book for common issues. We have set up a programme of standardisation work that ranges from reasonably straightforward issues (eg commencement) to more complex areas (eg infringement offences).

Why increase the use of standard provisions in legislation?

Increasing the use of standard provisions in legislation benefits both users and those involved in developing legislation:

  • It achieves greater consistency across the statute book, so reducing complexity and helping users find and understand legislation.
  • It enables knowledge and guidance about these issues to be brought together and distributed more easily, so reducing the risk of error. It should also increase the efficiency and ease of developing legislation—if the common issues can be dealt with quickly, drafters and instructors can focus on the novel issues.
  • Lastly, although standardising legislative provisions on an issue does not involve a policy review, it does provide an opportunity to resolve technical issues that are difficult or impact across the statute book.

image showing aspects of great law graphic relating to standardisation

What does standardisation look like?

Generally, standard provisions will be in a template form that includes both the standard provisions and guidance notes for drafters and instructors. The guidance notes will explain the purpose and intent of the provision and (where relevant) highlight for instructors what policy choices are needed for drafting.

Here’s an example of a standard provision … 

example (who may issue infringement notices) with variable text in [italics]

… plus guidance notes …

related notes saying when clause might be needed

… and highlighting for instructors when policy choices must be made …

questions teasing out issues

To capture the benefits of standardisation, we intend that drafters will use the standard provisions in the settled form. They will tailor them only where indicated. Other changes to standard wording will be done only if strictly needed for a particular reason.

The guidance material will be available to instructors so we have a shared understanding of how the provisions are intended to work. We envisage that explanatory notes (like those that would accompany the introduction of a Bill containing these provisions) would be available for public access too.

How are we going about this work?

We want to make sure that standardisation works for instructors as well as drafters, and that we learn from your experience in using existing precedents already enacted.

So we have established an advisory Standardisation Board (with representatives of instructors, LDAC, Crown Law, and other drafting agencies). While drafters will do the work in developing the standard provisions, the board oversees the programme of work, provides a broader stakeholder perspective, and advises the PCO on how best to manage risks and priorities.

The programme of work through to the next election is set out below, although progress depends on availability of drafting resources within the PCO.

underway, prioritised next options, potential other candidates

We want to ensure that we consult, as appropriate, on projects so we learn from your experience with existing precedents, make sure the guidance works for you, and alert you to changes in drafting approach.

The first set of provisions we are consulting on is the provisions for establishing new infringement offence regimes. We will shortly be sending this consultation document to chief legal advisors in each department.

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July 2019: Seeking Attorney-General’s permission to draft in advance of Cabinet policy decisions

In our last PCO Quarterly, we noted that Cabinet approval is required before the PCO starts to draft. However, in exceptional circumstances there is a process by which your Minister can write to the Attorney-General to seek permission for us to start work ahead of policy approval.

We want to remind instructors that this is a rare exception to the usual Cabinet rules. It is designed to be used only when truly needed and appropriate, and should not be part of standard project planning. Overuse of this process undermines Cabinet collective responsibility: consultation prior to Cabinet approvals is vital to highlight areas where further discussion between agencies or Ministers is required. Overuse also creates a risk of significant reworking of drafting (and so loss of time on a legislative project) if policy is not well settled.

The PCO is consulted on all requests made to the Attorney-General, and can help you assess in advance whether your request is likely to be appropriate or not. The level of likely controversy in relation to the policy at Cabinet (and so how likely it is that the policy might shift at Cabinet) is a key consideration. We also consider carefully the urgency of the matter, any immoveable deadline, the level of Ministerial sign-off, and the length and complexity of the drafting needed.

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July 2019: Commencement dates matter!

We have a few reminders for instructors on some recurring problem areas for commencing legislation.

Using commencement “by Order in Council” in Acts

Generally, Acts commence on a set date or on a date determined by a formula (for example, two months after the date on which it receives the Royal assent). However, an Act can also state that it commences on one or more dates set by a commencement Order in Council.

The commencement Order in Council method is useful where there is a clear reason for delay and it is not easy to estimate the exact period of delay. One example is where time will be needed to prepare the necessary secondary legislation to support the Act and it is not clear exactly how long it will take. Another example is where the commencement of the legislation depends on a treaty coming into force.

However, commencement by Order in Council may cause uncertainty for users about when legislation will commence. Legislation that sits uncommenced on the statute book for a long time also risks undermining the will of Parliament.

As a result, the PCO suggests that if commencement is to be by Order in Council:

  • you should have a good reason for using this commencement method
  • if possible, include a backstop date (by which legislation will come into force if not commenced earlier by an Order in Council)
  • your agency may need to re-assess whether an Order in Council commencement is truly necessary once a Bill approaches the Committee of the whole House stage. At this stage, it may be clearer when a Bill is likely to pass and how long will be needed for implementation. If possible, replace the Order in Council commencement with a fixed date commencement.

Parliament’s Regulations Review Committee takes a keen interest in commencement Orders in Council. As a response to a previous report of RRC, the Attorney-General reports to Parliament each year on the legislation that is waiting to come into force. The next report is due out soon. So, if you are one of the ten agencies that have uncommenced legislation in the current report, the PCO will have been in touch.

Each year we ask for updates on the status of your legislation. We aim to make it clear to Parliament, and the public, the reasons for the delay and the action each agency plans to take for the 26 Acts in the current report.

Once the Attorney-General has presented the report to the House, we publish it on our corporate website. We review the report during the year, and publish quarterly updates to remove provisions as they are brought into force or to add new ones.

A set commencement date is better for most secondary legislation

The PCO’s preferred approach to commencement of secondary legislation is for the secondary legislation to state the exact date on which the legislation will come into force. This gives the most certainty and clarity to users about when legislation will commence and it is usually easier to specify a set commencement date for secondary legislation than for Bills.

Sometimes secondary legislation states that it “comes into force 28 days after notification in the Gazette”. This is particularly useful if there is uncertainty about when the legislation may be made. We use this approach to avoid reprinting the draft legislation (if there is a delay in its making) while ensuring that the 28-day rule is complied with (see more on the 28-day rule below).

The PCO wants to increase the use of set commencement dates because the “28 days after notification” approach means that users need to calculate the commencement date themselves. This is not easy for users, particularly if they don’t know the Gazette date.

The Regulations Review Committee has also recently been alerting agencies to the importance of using a set commencement date. Accordingly, there needs to be a clear justification for using the “28 days after notification” approach. We think there is only a clear justification for this where the uncertainty about when the legislation may be made is unusually significant.

Cabinet requirements for compliance with the 28-day rule

The Cabinet recently issued a reminder that commencement dates need to comply with Cabinet’s rule that secondary legislation must not come into force until at least 28 days after it has been notified in the Gazette. See Cabinet Office Notice (19) 1, released on 21 June.

The 28-day rule reflects the principle that the law should be publicly available and capable of being ascertained before it comes into force.

Secondary legislation that is submitted to Cabinet for approval is expected to comply with the 28-day rule unless there is a valid reason for Cabinet to agree to a waiver. Agencies need to factor the rule into their planning at the start of the policy process.

If you need a waiver, include it in the recommendations in the Cabinet committee paper, with an explanation in the body of the paper. In your explanation address why it is not necessary or possible to give the public advance notice of the secondary legislation. For example, explain:

  • where it has little or no effect on the public, or confers only benefits on the public
  • where it is made in response to an emergency
  • where early commencement is necessary to comply with statutory or international obligations
  • where early commencement is necessary to avoid unfair commercial advantage being taken, or the defeat of the purpose of the secondary legislation
  • where irregularities need to be validated.

A guide to structuring recommendations in a Cabinet committee paper seeking approval for secondary legislation, including when seeking a waiver of the 28-day rule, is attached to Cabinet’s reminder notice.

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July 2019: Update from the Legislation Design and Advisory Committee

LDAC continues to have a busy workload of Government Bills to advise on, with engagements from early policy development through to legislative design and advising on draft Bills, and making submissions to select committees. Early feedback suggests that LDAC’s flexible subcommittee process for pre-introduction Bills is working well. The subcommittees have been impressed at the quality of the material being provided by departments and the willingness and ability to engage on legislative design issues.

There is also an LDAC seminar coming up on Friday 9 August, 10 am–12 pm, on using the Legislation Guidelines to support good legislative design. Invitations to this seminar will be sent to government departments shortly.

LDAC has reluctantly said farewell to two longstanding and valued public service members, Becky MacNeill and Andrea King, and gratefully welcomed two new members, Dagny Baltakmens and Graeme Morrison. Dagny replaces Andrea as the Ministry of Justice ex officio member. Dagny is currently Principal Solicitor in the Ministry of Justice’s Office of Legal Counsel, where she leads work on miscarriages of justice and vetting of legislation for consistency with the Bill of Rights. She has previously worked at Crown Law and in private practice, and was recently seconded to DPMC as Manager of the Corporate Legal Services team. Graeme has been appointed as a co-opt member. Graeme is currently Policy Manager, Drafting, Policy and Strategy, at Inland Revenue. Graeme has been involved in a wide range of IRD legislation, and currently oversees the IRD’s Bill programme. He brings broad and welcome experience of policy and law making.

The Attorney-General has also agreed to establish the role of deputy chair of LDAC and has approved Sarah Kerkin’s nomination for this role. As well as the usual deputy role, Sarah chairs the Guidelines Subcommittee, which gathers the committee’s jurisprudence from its advice and submissions, identifies supplementary material for development, and manages changes to the Legislation Guidelines.

LDAC welcomes ideas on how it can improve the way it operates and how it can best promote good legislative design. We gather feedback through a post-engagement survey. You are also welcome to contact Secretary Kathryn McKinnon or Chair Karl Simpson with any ideas.

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July 2019: Attorney-General’s Protocol for Release of Draft Government Legislation Outside the Crown

Cabinet has released an amended protocol governing the release of draft government legislation outside the Crown.

The changes are to enable:

  • the release of draft legislation to external advisers of the Legislation Design and Advisory Committee (paragraph 9.3 of the Protocol)
  • easier consultation with Crown entities (paragraph 9.4 of the Protocol).

The revised protocol is annexed to Cabinet Office Circular CO (19) 2, which replaces CO (14) 4.

Section 61 of the Legislation Act 2012 confirms that draft legislation prepared by 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 supplements existing guidance contained in paras 4.62 to 4.73 of the Cabinet Manual 2017, and makes clear when the Attorney-General’s approval must be sought for the release of draft legislation outside the Crown.

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March 2019: LDAC operating model changes

The December 2018 issue of the PCO Quarterly outlined changes to the structure of the Legislation Design and Advisory Committee (LDAC): combining public service and external adviser expertise into a new single-committee structure. This has led to some changes to the way that LDAC will operate.

Previously, pre-introduction Bills were generally referred to a LDAC meeting comprised of public service members, with a subcommittee established only if further engagement was needed. For post-introduction Bills, the external members of LDAC would develop a submission to the select committee, which would be submitted via the LDAC chair.

LDAC now meets regularly as a full committee to discuss strategic “cross-cutting” issues raised by Bills and its other work.

LDAC engagement on both pre- and post-introduction Bills is now principally through LDAC subcommittees established for individual Bills. The subcommittee will engage with officials at appropriate points in the Bill’s development up to and, potentially, following introduction. The subcommittee will usually comprise four LDAC members and (subject to consultation with the relevant department and approval of the Attorney-General) will be drawn from the full membership of LDAC. Alternatively, where engagement is not through officials, LDAC may make a submission to a select committee on a Bill and may establish a subcommittee for that purpose.

LDAC is working on a guide for officials that will outline this new operating model in more detail and provide guidance on how to get the best out of engaging with LDAC.

In bids for a place on the legislation programme, Ministers indicate whether they intend to refer a Bill to LDAC. LDAC has begun the year with an initial prioritisation of these Bills to identify those that will most benefit from LDAC engagement. This prioritisation is necessary because the number of Bills proposed for referral in 2019 significantly exceeds LDAC’s capacity to provide in-depth assistance to officials through an LDAC subcommittee. LDAC has consulted the relevant departments on this prioritisation but remains open to reprioritisation if this becomes desirable during the year—particularly if new work arises that would benefit from LDAC involvement.

In January 2019, LDAC welcomed a new member: Guy Beatson, Managing Consultant of Beatson Company Limited. Guy was previously a member of the Legislation Advisory Committee. The full list of LDAC members is on the LDAC website.

If you have any queries about LDAC or the Legislation Guidelines, visit ldac.org.nz or email the LDAC Secretariat.

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March 2019: LEG moves to Tuesday 9.15 am meetings

The Cabinet Legislation Committee (LEG) now meets at 9.15 am on Tuesdays (moving from 9.30 am on Thursdays). LEG papers must be lodged in CabNet by 10 am on the Thursday before the meeting.

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December 2018: Season's greeting from the Chief Parliamentary Counsel

It’s nearly Christmas, and there’s that feeling in the air—lots of functions and festivities, but deadlines still to meet, and a breathless waiting for what’s just round the corner. Looking back at the past year, it’s been quite an unusual one in some ways and I want to take this opportunity to thank everyone we have worked with for their support over the last 12 months.

In August we got the unexpected news that we had to vacate our premises in the Reserve Bank while issues with asbestos were investigated and dealt with. Throughout the incident the Bank took a conservative approach to safety, and for this I thank them. It was good to know that their top concern was the health of all staff in the building.

So on 24 hours’ notice we moved out. We received fabulous support when we needed it—Parliamentary Service and the Office of the Clerk made rooms in Parliament and space at No 1 The Terrace available to us, and IT and Access Project contractors also made space for us. With some staff working from home, everyone was accommodated and we were able to resume work immediately. Thanks to all PCO staff for coping so well through the upheavals, and especially to the IT Operations Team for keeping us connected to our systems and the world.

Four months later the asbestos has been dealt to, and the last team moved back into the Reserve Bank this week. It is good to be home!

But despite our best efforts the past few months haven’t been quite as normal, and I want to thank everyone we work with for their patience and understanding.

Also significant in 2018—our work on a Bill to accompany the new Legislation Bill, the Secondary Legislation (Access) Bill. This mammoth undertaking has absorbed efforts from several teams within the PCO, amending as it does every empowering provision contained in Acts. Of which there are thousands. Everything about this Bill is big—the research involved in identifying the relevant provisions, the number of recommendations to be made on how to treat each one, and the length of the resulting document. And nearly every step has involved input from the departments that administer the affected Acts. There is more on the Bill and other work the Access Project is undertaking with departments on page 3. But I want to add my thanks to everyone from departments and agencies who is part of this work. The result will be worth the effort.

Great law for NZ image, fit for purpose, constitutionally sound, accessibleOur goal of Great law for New Zealand  is bedding down within the office. It permeates everything we do. But it is a goal we share with everyone across the legislative system, starting with the House of Representatives. It was wonderful to hear Chris Penk, Member for Helensville, using the great law model as a tool for assessing a Bill—in this case, the Trans-Pacific Partnership Agreement Amendment Bill. This is just how it should be used.

A real highlight this year was the Conference for Drafters of Secondary Legislation, which we held at Parliament jointly with NTZA, the Electricity Authority, and MPI. The sessions covered everything from regulatory stewardship and legislative design to workshops on the nitty-gritty of drafting. The event was a great success and will be repeated.

Of the office’s many initiatives underway I’d like to mention just one: greater capacity in using te reo Maori. Building this capacity within the office is something that will take time. As a first step we have offered introductory classes in te reo to all staff, and I am so pleased that around half are taking up the opportunity. Already many staff have completed two or three units and are keen to progress further. Also we have welcomed a part-time secondee from the Office of the Clerk to help with matters relating to our te reo Maori strategy.

I’d like to wrap up by saying how proud I have been this year of the office’s resilience through some challenging times. And how grateful I am for the support we have received across many agencies and departments.

From all the staff at the PCO, have a restful and thoroughly enjoyable holiday.

Fiona Leonard

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December 2018: 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 NZ 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 (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 for making and publishing a LI, they need to be factored in when deciding when the LI is to be made. The LI should only sent to Cabinet for approval and signature by the Governor-General at that time.

For legislation drafted by agencies that are not LIs, legislation should also be published as soon as possible after it is made.

See also the earlier note (March 2014) about the publication of Legislative Instruments.

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December 2018: Adjustment of Legislation Design and Advisory Committee

Since 2015, the Legislation Design and Advisory Committee (LDAC) has been engaging with departments early in the development of legislative proposals to improve the quality and effectiveness of legislation. LDAC’s role has also included the vetting of selected Bills after their introduction against the Legislation Guidelines through a subcommittee of external advisers (consisting of experienced legal practitioners and academics).

Although LDAC has been working well overall, this two-committee structure has proved difficult to operate in practice and has not made the most of LDAC’s combined expertise. On 13 September 2018 Cabinet approved merging LDAC and the external subcommittee into a single committee.

By combining public service and external adviser expertise, the new single-committee structure will enhance LDAC’s work on key strategic “cross-cutting” issues. This will contribute to the development of the Legislation Guidelines and supporting supplementary material, as well as the education sessions LDAC holds for the public sector.

Key features of the merger are:

  • The number of members of the combined committee has been reduced from 31 to 18 (10 to 12 public service members and the rest to be external members). The chair may co-opt up to three additional members to work on specific issues or for limited periods.
  • Generally, public service members will continue to provide pre-introduction advice through subcommittees.
  • But there is flexibility for the Attorney-General to approve specific external members to be involved on these subcommittees on the advice of LDAC’s chair (to be given only after consultation with the chief legal adviser of the department for the relevant Bill).
  • Submissions on Bills after their introduction will continue to be made by a standing subcommittee, now comprised of external and public service members. The public service members will act independently in making submissions.
  • Appropriate confidentiality obligations and conflict-of-interest procedures will apply to members in all their work for LDAC.

The Attorney has also now confirmed the membership of the merged LDAC (many of whom come from the existing committees). The appointees provide legal, regulatory, and policy experience and a range of subject-matter expertise.

Because the current Chair, Paul Rishworth QC, is moving to the Bar, the Attorney has appointed Karl Simpson from the Ministry of Transport as the new Chair. Paul will continue to contribute to LDAC as an external member. Two new members have also been appointed: Susan Hall from MBIE and Kelly Hanson-White from WorkSafe NZ.

The full list of members follows:

  • Karl Simpson, Director— Regulatory & Data at the Ministry of Transport
  • Andrea King, (ex officio), Chief Advisor, Courts and Justice Services Policy, Ministry of Justice
  • Fiona Leonard (ex officio), Chief Parliamentary Counsel, PCO
  • Cassie Nicholson (ex officio), Deputy Chief Parliamentary Counsel, PCO
  • Tania Warburton (ex officio), Policy Advisor (Legal), Department of Prime Minister and Cabinet
  • Allison Bennett, Director, Legal, Ministry of Business, Innovation and Employment
  • Jason Gough, Senior Crown Counsel, Crown Law
  • Sarah Kerkin, Chief Advisor, Courts and Justice Services Policy, Ministry of Justice
  • Becky MacNeill, Deputy Chief Executive Organisational Performance at the Ministry for Culture and Heritage
  • Paul Rishworth QC, Barrister, Auckland
  • John Sutton, Principal Policy Analyst, Department of Internal Affairs
  • Susan Hall, Manager, Business Law Policy team, Ministry of Business, Innovation and Employment
  • Kelly Hanson-White, Manager, Regulatory Frameworks team, WorkSafe NZ
  • Brigid McArthur, Partner, with Greenwood Roche, Wellington
  • Jonathon Orpin-Dowell, Barrister, at Stout Street Chambers in Wellington
  • Matthew Smith, Barrister, at Thorndon Chambers in Wellington
  • Mamari Stephens, Senior Lecturer, Victoria University
  • James Wilding QC, Barrister, at Clarendon Chambers in Christchurch.

A further external member appointment is expected before the new year.

The PCO and LDAC are very grateful for all the work done by retiring members for the committee to date, particularly the large amount of work involved in producing the Legislation Guidelines (2018).

View the the Cabinet minute and related Cabinet paper authorising these changes.

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September 2018: Conference for Drafters of Secondary Legislation

On 22 and 23 August the PCO, in collaboration with NTZA, the Electricity Authority, and MPI, held a conference for drafters of secondary legislation—the culmination of several months of planning.

The conference was opened by Fiona Leonard, followed by an address by the Attorney-General. Kura Moeahu, Parliament's Principal Cultural Advisor, welcomed attendees with a mihi and closed with a karakia. And throughout, Cassie Nicholson and Leigh Talamaivao as MCs kept the pace up and the programme to time.

It was an intense two days, with a wide variety of speakers sharing their experience and knowledge. Suzanne Gledhill (NZTA) and Alipate Camaivuna (MPI) looked at preparation for drafting, working with and without instructors. Angela Duncan, Andrew Allen, and Tamara Lovett (all NZTA) spoke about how to make consultation work in the connected world. Andrea Speir (MPI) and Andrew Springett (Electricity Authority) discussed best practice tips for managing drafting (including using technical specialists, in-house lawyers, and external lawyers). The Hon Gerry Brownlee and Dr Duncan Webb provided the Regulations Review Committee’s perspective. Panel discussions on  regulatory stewardship and legislative design drew on the expertise of Karl Simpson (Ministry of Transport), Kirstin Howard (NZTA), Aroha Beck (Environmental Protection Authority), Natalie Muir (Financial Markets Authority), and Mike Sinclair (Auckland Council).

From the PCO, Jonathan Robinson explained what improvements to access to secondary legislation will  mean for agencies; Ross Carter teased out questions of vires; Scott Murray looked at the sometimes difficult area of transitional and savings provisions and how to avoid traps; and Richard Wallace explored the developing relationship between legislation and technology.

A highlight was a series of workshops on fundamentals of drafting, run in smaller groups and repeated so that everyone could participate. Led by Nicky Armstrong  and Alana Belin, Cathy Rodgers and Jessica Braithwaite, and Zoë Rillstone and Rob Brier, they delved deep into structure, coherence, and wording.

Participants have given some very positive feedback—the workshops in particular were singled out as being very useful—and there's a clear enthusiasm for the conference to become a regular event.

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June 2018: Legislation Bill progresses

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

The most significant change was to give makers of secondary legislation a duty to provide information about their in-force secondary legislation to the PCO. The PCO will publish all of this information on the NZ Legislation website.

More about this "list" duty and improving access to secondary legislation »

The other changes to the Legislation Bill recommended by the select committee were refinements. The most substantive of these was to the default powers to incorporate material by reference in secondary legislation.

In the Bill as introduced, there was no power to incorporate material by reference that was merely “large”. The select committee has recommended adding the power to incorporate by reference technical matters that are “large” if including them in the secondary legislation would reduce accessibility. This recognises that even when technology has reduced access issues around large material, it might still impact on the ability of the public to find and use the legislation if very large material were to be reproduced in it.

The committee also recommended adding a general test for the chief executive of an administering agency to be satisfied that it is appropriate to incorporate the material by reference, having regard to the purpose of the Legislation Act. This would require the chief executive to consider the appropriateness of the material to set legal obligations and its accessibility (consistent with the Legislation Design and Advisory Committee’s Legislation Guidelines).

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April 2018: Lifting our gender neutrality in legislation: using the “singular they”

The PCO has long had a practice of drafting with gender-neutral language. It is important to be gender neutral in legislation for legal reasons (particularly since, under the Interpretation Act 1999, the masculine pronoun does not generally include other genders). It’s also important so that legislation communicates effectively to all those to whom it applies. And, most significantly, there is a constitutional dimension—the law should treat all persons equally, regardless of their gender.

We have recently decided to add a new technique of gender neutral language: using the “singular they”­—in other words, allowing “they”, “their”, or “them” to apply to a singular person.

For example:

“The young person is entitled to this support whether or not they have received …”

can be used instead of:

“The young person is entitled to this support whether or not he or she has received …”

This change arose out of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill, where there was concern that using “he or she” did not cater for those who did not identify themselves by gender or who regarded themselves as transgender. At the time, we used the “singular they” for that Bill. We followed up with some research by our Government Legal Network (GLN) summer clerks on other countries’ legislative drafting practices, and are now shifting to use the practice in legislation more widely.

The singular “they” is widely used in spoken English (try a quick test: “Somebody showed her the way, didn’t _____ ?”). It has been adopted in writing at least since the 14th century. And although grammarians are usually not keen on it, there are indications that accepted grammatical rules for written English are also changing on this point. Many jurisdictions do not use it within legislation, but there are exceptions. The use of “they” or “their” is expressly sanctioned in the Canadian federal drafting manual, and is allowed by some Australian states. Some New Zealand legislation (eg tax legislation) and other departmental documents (eg Department of Corrections guidelines) already use it.

Drafters will assess when it is appropriate to use the “singular they”. In some contexts it is ambiguous, particularly when two or more people or groups are mentioned. In these situations there are other techniques that should be used to achieve gender neutrality. In general also, if legislation is being amended that already uses “he or she” throughout, we won’t introduce the singular “they” to keep consistency. We may still use “he or she” in new drafting, but will review the ongoing use of this technique in 2019.

The PCO’s drafting guidance will be amended to include the use of the singular “they” (and this will be reflected in Principles of clear drafting (Chapter 3 of our Drafting Manual)).

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April 2018: Cabinet Committees information

Cabinet Office Circular CO (17) 12 sets out the structure, terms of reference, and membership of the ten Cabinet committees:

  • Cabinet Appointments and Honours Committee (APH)
  • Cabinet Business Committee (CBC)
  • Cabinet Priorities Committee (CPC)
  • Cabinet Crown/Maori Relations Committee (CMR)
  • Cabinet Economic Development Committee (DEV)
  • Cabinet Environment, Energy and Climate Committee (ENV)
  • Cabinet External Relations and Security Committee (ERS)
  • Cabinet Government Administration and Expenditure Review Committee (GOV)
  • Cabinet Legislation Committee (LEG)
  • Cabinet Social Wellbeing Committee (SWC).

The circular, released in January, was updated on 1 March to reflect the name change of the Cabinet National Security and External Relations Committee (NSC) to the Cabinet External Relations and Security Committee (ERS).

A new Cabinet committee is CMR, the Cabinet Crown/Maori Relations Committee.

See also the Public Sector Intranet for Cabinet Office guidance, including contact details, notices, and timetable information.

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April 2018: New version of LAC Guidelines coming soon

A new version of the Guidelines on Process and Content of Legislation (commonly known as the “LAC Guidelines”) will be available soon under a new name—the Legislation Guidelines. The Legislation Design and Advisory Committee (LDAC) adopted the updated guidelines earlier this year. Cabinet has this week endorsed them as setting key standards with which LEG papers must indicate compliance, and against which policy and legislative proposals generally should be tested.

The guidelines have been revised to:

  • fill gaps identified in the 2014 revision and through more recent consultation with key regulatory departments
  • update the guidelines to reflect changes in law and emerging issues
  • clarify guidance and, in places, provide more nuance or detail.

The changes include:

  • three new chapters covering good legislative design, legislative requirements for consultation, and civil pecuniary penalties
  • new guidance on when to consider replacing, rather than amending, legislation
  • new guidance on information-sharing provisions
  • more detailed guidance on the different types of Henry VIII clauses
  • an increased emphasis on key principles to be balanced when deciding what to delegate to secondary legislation.

We expect the revised guidelines to be published on the LDAC website (ldac.org.nz) soon. A Cabinet Office circular notifying agencies of the revised guidelines will also be produced around the same time.

Over the coming months, the LDAC intends to publish tranches of supplementary material that will sit under the guidelines. The material will provide more detailed guidance on particular topics, as well as legislative examples to assist in making decisions at the margins. The supplementary material will also be published on the LDAC website.

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April 2018: Preparing legislative disclosure statements

Include file size 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 [since updated to Web Usability Standard 1.3: 3.1 Links to non-HTML files]).

For example, a link to the PCO’s Annual Report might look like this:

“see http://www.pco.govt.nz/assets/Uploads/pdf/2017report.pdf (PDF 524KB)”

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

Use the latest template

When preparing a disclosure statement, remember to download a template direct from the Treasury website. The template is occasionally updated, and this will ensure you are using the latest version.

For more information about preparing disclosure statements, see:

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December 2017: Message from the Chief Parliamentary Counsel

Fiona Leonard

Fiona Leonard

As 2017 fades in the (rather unexpected) heat of summer, I’d like to look back to the thinking we have done on our role as an office and look forward to the new impetus and focus this provides.

Three years ago the Performance Improvement Framework review of the PCO proposed that we extend our role to encompass stewardship of the statute book. To some degree this has been implicit in our role for many years, but never made explicit. So the office as a whole has been exploring the implications of stewardship and what it means for us and for others. We have ended up with the new and challenging goal of “Great law for New Zealand”.

Great law is not something we work on alone—this is a shared goal. See "PCO's stewardship of legislation" below where we tease out the concepts, our responsibilities, and how others contribute.

The goal of great law lies behind everything we do—drafting, publishing, and the initiatives we have chosen to focus on to better support our core business. Some of those projects are bearing fruit already, while others are for longer-term benefit.

The Legislation Bill is now before the Justice Committee and public consultation is underway. This Bill is intended to pull together many strands—laying the groundwork for the Access to Secondary Legislation Project, which will make access to secondary legislation so much easier—consolidating the legislation about legislation by incorporating the Interpretation Act 1999—and strengthening legislative disclosure requirements, supporting scrutiny of legislation. See "Improving access to secondary legislation" below for more on this.

Historical legislation: While the NZ Legislation website provides all current Acts and Legislative Instruments from 2008 onwards, and everything repealed or revoked since then, there is often a need for older repealed or revoked law. Some years ago we provided scans of historical legislation and Bills for hosting on the New Zealand Legal Information Institute website. But users want to access this information direct from the NZ Legislation website. So we are working to incorporate them, initially as a separate collection of PDFs. In the future we will investigate integrating this historical material into the main collection.

Using standard provisions in Treaty Bills has already proved its worth. We are developing a programme to extend standardisation in both content and structure of legislation. There are many potential benefits: making it easier for users to understand, and find their way around, legislation; lowering the risk of unintentional error; and increasing efficiencies in producing legislation.

Plain language is fundamental in legislation, allowing ordinary people (and lawyers too!) to understand and use the law. We are reinvigorating our plain language culture through a new strategy aimed at making legislation more accessible and effective, and making it part of how the whole office communicates. I was delighted that the Contract and Commercial Law Act 2017—the first product of the revision programme—won the 2017 WriteMark Plain English Award for Best Plain English Legal Document. See the note below about consultation on the 2018–2020 revision programme, and the news page for more about the winning Act.

The last area of focus that I want to mention is te reo Maori. We are developing our capability in te reo, including the use of te reo and Maori legal concepts in legislation. We have much work to do in this area, but I want us to be ready to ensure te reo is used effectively and accessibly in legislation.

And finally, but most importantly—thank you! To all the agency officials we have worked with so productively this past year—your support and collaboration has been invaluable. I’d also like to thank the dedicated staff of the PCO. It is time for a break for all of us to recharge, spend time with family, disappear to somewhere remote, bring out the barbie, dig the garden … (I don’t want to be too prescriptive here! whatever brings you joy) and look forward to the challenges of 2018.

Fiona Leonard
December 2017

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December 2017: PCO's stewardship of legislation

Over the past year we have been thinking about stewardship and what this means for us and for legislation, and how we can give effect to our stewardship obligations. Stewardship requires us to take a proactive approach to managing and planning for the medium- to long-term of New Zealand’s laws, for the benefit of current and future users.

Our role in drafting and publishing legislation is carried out as part of our broader stewardship role for New Zealand’s legislation. We believe that our stewardship role demands more than technical expertise and legislative excellence. It requires us to be leaders in developing and promoting shared goals for New Zealand’s laws across the government system.

But we are not the sole legislative steward. Chief executives of government departments are charged, under section 32 of the State Sector Act 1988, with stewardship of the legislation they administer. The Regulatory Quality Team at Treasury promotes regulatory stewardship initiatives. Crown Law plays a vital role in supporting the rule of law and better decision-making. The Legislation Design and Advisory Committee focuses on supporting better legislative design. Effective stewardship requires us to collaborate with these and other key participants in the legislative system to deliver the best legislative outcome possible.

PCO has defined a shared goal for legislation

In our stewardship role, we have looked at how to define a shared goal with others in the legislative system. We have defined that goal as “Great law for New Zealand”.

For law to be great, it must be fit for purpose, constitutionally sound, and accessible for users, both current and future:

Great law for NZ diagram

By this we mean:

Fit for purpose: Laws should be necessary, and effective, for their purpose. Laws need to provide certainty as to legal rights and obligations, but also have sufficient flexibility to adapt to the future. They need to integrate both with the wider statute book and the legal system generally.

When we draft we focus on finding the best legal mechanism to implement the Government’s intentions with minimum risk of unintended consequences. We work with you, the policy and subject matter experts, at all stages to resolve issues. Then we apply additional quality assurance processes (peer review and proofreading) that focus on legal workability and minimising the risk of errors.

Constitutionally sound: High-quality legislation is critical to the functioning of New Zealand’s democracy. Laws that overreach can do significant harm by inhibiting freedoms or undermining important values or institutions of our society. Following a good process for making law supports the legitimacy of that law, and increases public confidence in the system more generally.

It is increasingly important to check how proposals interact with the Treaty of Waitangi and post-settlement obligations well in advance of legislation being developed so that risks can be identified and proactively managed.

Accessible: Laws that cannot be found or understood undermine the rule of law. Legislation should be readily and freely available from a source that people can trust. We publish all primary legislation and all PCO-drafted secondary legislation on the New Zealand Legislation website. The law should be clear and concise. We seek to draft in plain language that ordinary users can understand. People should also be able to navigate the law easily to find what they need. This has implications not only for publication but also for how we draft. We have a number of tools, such as the revision powers, that we use to systematically bring legislation into a simpler and more coherent framework.

Over the next year we will be talking to you further about our shared goal and your role in producing high quality legislation.

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December 2017: Notifying LIs to PCO: Gazette publication now continuous

The New Zealand Gazette has moved from a weekly cycle to continuous online publication, so notices can be published on any business day. Supplementary Gazettes will therefore no longer be needed.

All Legislative Instruments (LIs) are published on the  New Zealand Legislation website. In addition, the making of LIs must be notified in the Gazette (in a Notice Under the Legislation Act 2012). Publication of both the LI and the notice happens on the same day, and is arranged by the PCO’s Publications Unit.

For LIs signed by the Governor-General and approved by the Executive Council, the responsible department or body does not need to inform the Publications Unit. Publication is on Thursdays.

But for LIs signed by a Minister or other person or body, and not approved by the Executive Council, the responsible department must notify the Publications Unit that the LI has been made.

Two working days’ notice is required to meet Gazette deadlines.

See Notifying Legislative Instruments on the PCO’s corporate website for more details, including the form to notify the Publications Unit and their contact details.

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October 2017: PCO assists induction for new MPs

The PCO has been helping Members newly elected to Parliament in their orientation. Ours was a small part in a programme that covered everything from giving a maiden speech to declaring pecuniary interests. Chief Parliamentary Counsel Fiona Leonard spoke to new MPs on the PCO’s role, particularly at select committee and committee of the whole House, and included a brief introduction to the structure of legislation.

There is more about the induction on the Parliament website

PCO booth at MPs induction

PCO staff stand ready to answer questions from new MPs during the induction programme.

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October 2017: Changes to the regulatory impact analysis system

Cabinet has approved changes to the regulatory impact analysis system. These came into effect from 30 June 2017 with the issue of Cabinet Office Circular CO (17) 3 Impact Analysis Requirements.

See the Annex to CO (17) 3 for an overview of the new and discontinued requirements.

The changes are designed to improve the impact analysis that supports Ministers’ regulatory decision making by:

  • enabling agencies to focus their effort on those proposals where impact analysis is of most value
  • increasing the use of robust analytical frameworks
  • ensuring the impact analysis requirements better reflect and support the different stages in the development and design of a regulatory proposal.

There are new processes designed to encourage early engagement and to direct analytical effort and resources to where they are most needed. There are also new templates to replace the former general regulatory impact statement and encourage a more consistent analytical approach. And, to encourage high standards, there are new processes for where impact assessment provided in support of regulatory proposals to Cabinet is not adequate to support Ministerial decision making.

Resources

The regulatory impact assessment (RIA) templates, Treasury forms, and guidance on the impact analysis requirements are all available on the Treasury’s Regulation web page.

See also the Interagency Group on Regulatory Impact Analysis (RIANet) web page on the Public Sector Intranet, which provides guidance and training material on regulatory impact analysis and quality assurance of Regulatory Impact Assessments.

For more information, email the Treasury Regulatory Quality Team.

A reminder: timing of RIA publication

RIAs are published both on the agency’s and the Treasury’s websites.

Please ensure that the RIA is published on your agency website close to the time the related Bill or Legislative Instrument is published on the NZ Legislation website, so that the link within those documents to the RIA will work.

Bills are published at the point of introduction, and Legislative Instruments are published at 10 am on the morning of gazettal.

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October 2017: Review of Standing Orders 2017

Standing Orders 2017 book coverFive changes to legislative procedures for Bills

The Review of Standing Orders 2017  was reported to the House on 26 July 2017. The Standing Orders Committee’s recommendations were adopted by the House on 10 August 2017. The main points from the review are summarised on pages 4 and 5 of the committee’s report, and Part 2 shows the changes to the 2014 Standing Orders in revision-tracked format.

There are five significant points arising from the review that affect, or may affect, legislative procedures for Bills:

  1. Bills implementing international treaties: no debate on first reading if national interest analysis (NIA) report debated
  2. select committees reorganised (renamed, and with adjusted subject areas)
  3. New Zealand Bill of Rights Act 1990: NZBORA and post-introduction amendments
  4. committees of the whole House: Bills’ structure and how they are considered
  5. committees of the whole House: 24 hours’ notice needed for amendments.

Points 3, 4, and 5 are not changes to Standing Orders, but changes, by agreement, to practice.

1. Bills implementing international treaties: no debate on first reading if NIA report debated

A new procedure is introduced for debating each international treaty that the Government aims to implement through a Bill, in return for the Bill’s first reading being taken without debate (page 39 of the report).

For Bills implementing international treaties, this change is significant. It appears to have originated in party workshops and to have been developed in advice to the committee from the Clerk of the House (see Summary and analysis of issues raised: Part Two (June 2017) at pages 26–30).

So, for a Bill implementing an international treaty presented in the 52nd Parliament, a debate on the NIA report is set down as a Government order of the day and replaces the Bill’s first reading. See 2017 Standing Orders 67(d), 250(2)‌(a), 285(4)(c), and 398(1)(g) and (2).

2. Select committees reorganised (renamed, and with adjusted subject areas)

The 13 former subject select committees become 12. Subjects are re-arranged to fit them with the public service and Votes, and to even out workloads.

New or renamed committees are:

  • the Justice Committee, merging the former Justice and Electoral Committee with Law and Order Committee
  • the Economic Development, Science and Innovation Committee, replacing the Commerce Committee
  • the Governance and Administration Committee, a modified version of the former Government Administration Committee
  • the Environment Committee
  • the Social Services and Community Committee. 

A separate select committee to look at human rights matters was not favoured (at page 26, citing [2011–2014] AJHR I.18A, p. 15):

Consistency with the NZBORA is an important element of legislative quality, and it is for all committees to be mindful of legislative quality when considering bills. We endorse the comments of the previous [2014] Standing Orders Committee on this matter.

When the House reinstates business in the 52nd Parliament, business will resume, under (2014 and 2017) Standing Order 83, at the stage it had reached when the 51st Parliament was dissolved. Many items will resume before select committees, and this will require some reallocation of business to take account of the new select committee structure. The committee suggested that the reinstatement motion include the proposed allocation of business to select committees.

For example, at the dissolution of the 51st Parliament, a member’s Bill in the name of Jan Logie, the Domestic Violence—Victims’ Protection Bill, was before the Justice and Electoral Committee, which had received on it written submissions and oral evidence. The reinstatement motion could propose that Bill resume before the new Justice Committee.

3. New Zealand Bill of Rights Act 1990: NZBORA and post-introduction amendments

The New Zealand Law Society’s submission raised NZBORA vetting of SOPs. The Attorney-General can report on amendments to Bills that appear inconsistent with NZBORA at any time during the legislative process (not just on the introduction of Bills). The committee encouraged this practice (pages 25–27):

… there is no law, procedure, or constitutional convention that prevents the Attorney-General from informing the House, after a bill has been introduced, about provisions contained in the bill that are inconsistent with the NZBORA … As a Minister, the Attorney-General has the ability to present a paper on any working day under [2014 and 2017] Standing Order 372(1) … no change to the Standing Orders is required to enable the Attorney-General to report on NZBORA issues arising from amendments. We encourage the Attorney-General to do so in future.

4. Committees of the whole House: Bills’ structure and how they are considered

The PCO’s written submission to the review said the current default rule that a Bill is debated Part by Part (Standing Order 303) drives design of legislation that undermines easy access and understandability by users. This is because this rule indirectly results in most Bills being drafted in as few Parts as is reasonably practicable. So the current default rule has a long-term impact on the quality of New Zealand legislation.

The PCO’s submission recommended a new default rule for debate at committee of the whole House stage—that a Bill is debated as one question, and then proposed amendments are voted on under Standing Orders 307 and 308.

The PCO’s submission also noted recent general House practice under which almost all committee of the whole House stages do not exceed three hours. The submission also suggested the committee consider relaxing or removing the restrictions on the maximum number of speeches that MPs (especially party spokespeople) may make.

In its oral evidence, the PCO recommended that a Bill’s committee stage should, by default, be a maximum of three hours. The Business Committee should determine how the three hours are used. Debate could then be structured around themes or matters of policy.

The committee, in response, said (pages 30–31):

We agree that the arrangements for the committee stage of bills should not formally be linked to their drafting structure. While we are not prepared at this point to change the default settings for debate in the committee stage, we encourage the Business Committee to trial arrangements for better debates during this part of the legislative process … Under current rules, members (apart from Ministers and members in charge of bills) have a limit of four calls on each question during the committee stage. Taking every bill as a whole thus could severely curtail speaking opportunities for members, particularly those who have higher expertise and interest in the subject-matter of bills. We therefore suggest that the shift to debating bills as a whole be accompanied by the removal of the four-call limit.

In practice, this change will be implemented by Business Committee approval being sought (ideally pre-introduction) to apply the new proposed default rules. Advice from the Office of the Clerk should be sought on how to approach the Business Committee. An example of this approach being applied already is the Education (Update) Amendment Bill, where the Business Committee determined that the debate should be on a themed basis, rather than Part by Part, and with no limit on calls.

5. Committees of the Whole House: 24 hours’ notice needed for amendments

The New Zealand Law Society’s submission and the PCO’s submission both raised the concern that, in a committee of the whole House, amendments can be tabled (without notice) up until the time that voting begins. This does not allow the public to raise concerns with MPs or have notice of changes that can have substantial effects. The PCO’s submission said that this can impact on adequate or fair notice, and so also on the quality of the legislation that is enacted.

The PCO’s submission recommended that any amendment (other than a minor amendment to correct drafting or technical errors) should be out of order if not lodged at least 24 hours before the committee of the whole House stage.

The committee, in response, said (page 31) a 24-hour notice requirement:

… would be workable. In practice, this notice period would, at least for non-Government members, require that the Government give notice of committee stages through the Business Committee under [2014 and 2017] Standing Order 301(3). Where such notice is not given, Opposition members cannot be expected to meet a 24-hour rule … This change would result in improved legislative quality, as there would be time for consequential amendments to be identified. Members would have a greater ability to scrutinise amendments and decide whether to vote for them, and to prepare material for debate. They also could suggest or test technical amendments to clarify the meaning of words. A notice requirement also would make improved NZBORA scrutiny a feasible prospect, as there would be at least a short timeframe for examining and providing advice about NZBORA implications.

Committee of the whole House stage changes in practice to be further trialled Bill-by-Bill

The committee suggested (page 32) changes 4 and 5 should be further trialled: “before … such a major reform … We would like to see these arrangements being trialled frequently … with a view to becoming the default position in the future.”

Some proposals not agreed

The committee did not agree on proposals to amend the Standing Orders to provide rewards for inclusive and robust pre-legislative policy-making by the Government. But it did support a suggestion that the Clerk of the House collaborate with central agencies to identify how Government agencies’ pre-introductory policy and consultation processes could align more with the House’s consideration.

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October 2017: Checklist for transitional and savings provisions online

A transitional and savings checklist has recently been added to the PCO’s corporate website. The new checklist is intended to help you identify what may be needed to provide for the transition from an old law to a new one.

Some default rules are set out in sections 17 to 22 of the Interpretation Act 1999. However, further provisions may be needed to deal with a situation that isn’t covered by the default rules, to clarify the position, or to change the policy outcome under the default rules.

Transitional and savings arrangements can be a difficult area to provide drafting instructions on. It is useful to consider them early when developing instructions. Feel free to discuss them with your Drafting Team Manager.

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October 2017: Reminder: transitional and savings provisions now located in schedule

We now apply the policy that all transitional provisions relating to an Act or Legislative Instrument will be located in a schedule of the principal Act or Legislative Instrument. (Here, transitional provisions includes savings provisions and application provisions dealing with transitional issues.)

Every piece of amending legislation inserts the transitional provisions either into a schedule that already exists for that purpose in the principal legislation, or into a new schedule. The schedule will be number 1, or 1AA if the principal legislation already has a Schedule 1.

All new principal Acts will have a Schedule 1 for transitional provisions, even if there are no transitional provisions relating to the Act as first enacted.

The new approach makes it easier for the user of the legislation to find transitional provisions. In the past, when transitional provisions were not inserted into the principal legislation, finding them could be difficult.

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July 2017: New Legislation Bill introduced to Parliament

A new Legislation Bill was introduced to Parliament on 20 June 2017. The Bill, which rewrites the Legislation Act 2012, has four main elements:

  • Access to secondary legislation—the Bill delivers better access to New Zealand’s legislation by requiring all secondary legislation (that is, legislation made by Ministers, officials, or agencies under powers delegated by Parliament) to be published on the New Zealand Legislation website.
  • Interpretation Act—the Bill absorbs the Interpretation Act 1999 with some technical enhancements. This brings the principles and rules that underpin the interpretation of legislation, as well as its making and publication, into one Act.
  • Legislative disclosure requirements—the Bill enacts legislative disclosure requirements to make available key information about the development and content of new legislation. This supports legislative scrutiny and encourages the production of high-quality legislation.
  • Updates to Legislation Act—the Bill re-enacts, with minor changes, the current Legislation Act 2012.

The content of the Legislation Amendment Bill that was introduced to Parliament in 2014 has been incorporated into the Legislation Bill, and the 2014 Amendment Bill has been withdrawn from the House.

Access to secondary legislation

The Bill addresses the problem that currently there is no single place where an individual, a business, or Parliament can see all of New Zealand’s legislation. Secondary legislation that is drafted by the PCO is published in full on the NZ Legislation website, while secondary legislation that is drafted and made by government departments, agencies, and other non-governmental bodies is published either in the Gazette or on a variety of different websites, or is not readily available to the public at all.

The Regulations Review Committee, the New Zealand Productivity Commission, and the Government Inquiry into the Whey Protein Concentrate Contamination Incident have all raised concerns about the impact this has on peoples’ ability to access their rights and obligations, the cost of doing business in New Zealand, and on Parliament’s ability to oversee the exercise of delegated law-making powers.

If enacted, the Legislation Bill will solve these problems by extending the scope of the NZ Legislation website to include all secondary legislation, with limited, specific exceptions. The main exception is that secondary legislation made by local authorities will not be required to be published on the NZ Legislation website at this stage.

The Bill also significantly simplifies the processes that apply to secondary legislation. Under the Bill, there are only two categories of legislation: Acts of Parliament and secondary legislation. Unless a restricted and specified exemption applies, all secondary legislation:

  • must be published on the NZ Legislation website
  • must be presented to the House of Representatives
  • is disallowable.

For agencies empowered to make secondary legislation, publication on the NZ Legislation website will replace most of the publication and notification requirements that currently apply. Publication on the website will likely also enable a simpler process for presentation of secondary legislation to the House.

To provide certainty about which instruments made under an Act are secondary legislation, we are preparing a separate Bill to amend empowering provisions across the statute book. This will remove the uncertainty that currently exists under the Legislation Act 2012, which requires different tests to be applied in different circumstances, including a generic test that needs to be applied by agencies as to whether an instrument has “significant legislative effect”.

The PCO is analysing all empowering provisions for this purpose, and is working with administering agencies to agree the amendments that will be made via the amending Bill.

The Legislation Bill provides that secondary legislation comes into force only if it has been published on the NZ Legislation website (unless its empowering Act expressly states otherwise). This approach will provide certainty to users of the NZ Legislation website: if secondary legislation is not published on the website it will not have effect. However, agencies will need time to make changes to their existing processes for drafting and publishing secondary legislation. The Bill therefore includes transitional provisions to enable agencies to transfer their existing legislation to the NZ Legislation website, and to bring in the new publication requirements progressively, once we are confident that the PCO and agencies are in a position to comply with them.

Implementation of the Legislation Bill will require the development of tools and processes for agencies to draft secondary legislation in a format suitable for publication on the NZ Legislation website and to lodge it with the PCO. The preferred outcome is for secondary legislation drafted by agencies to be published in the same way as Acts and Legislative Instruments are now. Over the coming months, we will be working with agencies to trial solutions for drafting and lodging secondary legislation that would achieve this. We will also encourage agencies empowered to make secondary legislation to identify their existing stock of legislation, so it can be put into a form suitable for publication.

What this means for you

We want to help you get ready for shifting publication of your secondary legislation to the NZ Legislation website by finding all the instruments you currently have out there and putting links on our website to them. You can contact us on ASIP@pco.govt.nz.

Interpretation Act 1999

Moving the Interpretation Act into the Bill will make it easier for people to find the interpretation principles and rules.

The Bill largely carries forward the existing law. However, it makes some technical improvements to address issues that have been identified since 1999. Most of the changes were analysed in a discussion document published by PCO in 2013.

The changes include:

  • a new definition of “send by post” to clarify when an article is deemed to have been sent and delivered that can apply despite changes over time in postal delivery practices
  • where there is a power to prescribe a form, it includes the power to approve or prescribe information in place of the form, and in another format or medium
  • provisions to help determine when legislation commences or how to calculate the start and end of monthly periods set out in legislation
  • updating the definition of the North Island and of the South Island to include official alternative names:
    • North Island or Te Ika-a-Maui
    • South Island or Te Waipounamu
  • allowing regulations made under an Act to consequentially amend regulations made under another Act
  • clarifying that the meaning of an enactment must be ascertained from its text in the light of its purpose and in its context. The practice of the courts to refer to context (including for example parliamentary history) is now orthodox and routine.

Responsibility for administering the interpretation rules will transfer from the Ministry of Justice to the PCO.

Legislative disclosure requirements

The Bill enacts departmental disclosure requirements for Government-initiated legislation, which are currently being implemented administratively.

Departments responsible for developing legislation currently have to prepare statements for most Government Bills and substantive Government amendments (SOPs), and provide them to the PCO for publishing when a Bill or an amendment is published.

The Bill requires the department to disclose key information in four broad areas:

  • the policy background of the legislation (eg relevant published reviews and regulatory impact analysis)
  • the testing that the legislation has undergone (eg external consultation and vetting for inconsistencies with the New Zealand Bill of Rights Act 1990)
  • any departures from specified legislative guidelines or standards endorsed or adopted by the Government (eg aspects of the LAC Guidelines, such as provisions that retrospectively alter rights, freedoms, or impose obligations)
  • any other significant or unusual features of the legislation (eg powers to create secondary legislation, or that could result in the compulsory acquisition of property).

These four areas are closely aligned with the current administrative requirements. The core set of specific disclosures required in these four areas will be set out by ministerial notice approved by the House of Representatives. A ministerial notice may also extend the requirements to specified secondary legislation. However, no decision has been made about this at this stage and consultation with departments would be undertaken first.

The requirements are designed to improve the quality of legislation through supporting more informed parliamentary and public scrutiny of that legislation.

Disclosure statements are published by the PCO at disclosure.legislation.govt.nz.

The Treasury will administer these provisions. For existing disclosure statement templates and guidance material refer to the Treasury website at treasury.govt.nz/regulation/policyintolegislation/disclosurestatements/disclosureguide.

Minor updates to the Legislation Act 2012

The rewrite of the Legislation Act 2012 provides an opportunity to update, recast, and make some small technical amendments to some provisions.

Some changes will:

  • give the PCO an explicit objective of promoting high-quality legislation that is easy to find, use, and understand and, to that end, exercising stewardship over New Zealand legislation
  • extend the PCO’s functions to include providing guidance and other support for, and keeping under review, practices relating to the design, drafting, and publication of legislation
  • make small amendments to improve the revision programme powers and procedure
  • update the standard provisions for the incorporation of material by reference to make them more flexible and technology neutral.
Commencement

The Bill is intended to start in two broad phases:

  • Some early amendments will be made on Royal assent. This will enable targeted improvements to be made immediately to the current Legislation Act 2012 (for example, removing the redundant obligation to designate bookshops for the sale of legislation) and realign some drafting responsibilities under other Acts.
  • The commencement of the rest of the Bill depends on the timing of the business and IT changes needed for the PCO to publish all secondary legislation on the NZ Legislation website and on the changes needed to put in place the disclosure requirements regime. However, the Bill will commence three years after Royal assent at the latest.

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July 2017: Information for instructors: survey results

In March we sent you a survey aimed at finding out what you need to know from us, and the best way for us to provide that information. We asked you to rate a list of FAQs, and for your thoughts on the resources we currently provide.

Thank you to those who responded—you have given us some very useful information.

The FAQs were all rated very useful or somewhat useful. Some people were looking for detailed information at specific points of the legislative process, while others were looking for basic-level introductory information. It is clear that providing answers to the FAQs will fill a need—but it is also clear that one size does not fit all.

How usefulThe resources we already provide rated well (see above), though with some variability. As you’d expect, newer instructors appreciated the more introductory information. Again, one size doesn’t fit all. It is also clear that some resources are not reaching the people who might need them.

As a first step we have made our “Working with the PCO kit” (a brief summary of key information for instructing us) available on our website.

We are now looking at how we can provide information in a multi-layered way: easily accessible summaries that map out the overall process, while letting you dig into the detail when you need it. Further resources and ways to access the information will sit alongside. The final shape may evolve as we work through the materials and consult further, but the result should be easier and more flexible for you to navigate.

A few quick reminders, based on the survey results:

  • ask your drafting team manager about arranging a seminar targeted to your department
  • check out the resources under www.pco.govt.nz/instructing-the-pco
  • suggest new arrivals in your team sign up for the PCO Quarterly—email gillian.mcilraith@pco.govt.nz
  • contact your drafter or drafting team manager when you have questions.

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July 2017: Plain language standard and checklist

The PCO has recently released a Plain Language Standard and a Plain Language Checklist. The standard and checklist will help us to better deliver on our commitment to plain language drafting.

The PCO is also developing a Plain Language Strategy. Ultimately we want to:

  • make New Zealand’s legislation more accessible
  • improve the legal effectiveness of that legislation
  • make plain language the standard for how the whole office communicates.

PCO staff will use the standard and checklist at all stages of the drafting process. It will be used when drafting, peer reviewing, and proofreading.

We welcome feedback from instructors. If parts of a draft are hard to understand, please query them with your drafter.

The standard and checklist deal with:

  • big picture elements—for example, making the purpose clear and having a clear and logical structure
  • sentences—for example, keeping sentences short, simple, and precise
  • using words that are precise and familiar—for example, avoiding wordy phrases, double negatives, and archaic language
  • accuracy—for example, maintaining consistency.

The Plain Language Strategy will deal with:

  • training
  • incorporating a plain language review in our quality assurance processes
  • supporting our staff—for example, by making available plain language resources and expert plain language help
  • measuring our performance against the standard.

We are also developing materials to support the standard and checklist. The material will include examples of best practice, helpful hints, and guidance about when it might be sensible to depart from the standard.

The Standard and Checklist and other plain language information are available on the PCO’s corporate website under the Instructing the PCO tab. We intend to make the supporting materials available on our website as they are developed.

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March 2017: Improving access to formulas in legislation

We have identified a number of formulas in current legislation on the website that are formatted using tables or graphics. Although they may look ok in the PDF version of legislation, they don’t necessarily display well in the HTML versions (the section by section view) and, more importantly, screen readers used by the visually impaired cannot “read” them. 

The PCO is committed to providing free access to New Zealand legislation to all citizens. To make the formulas “readable” by a screen reader, the formulas need to be expressed on one line. For example, fractionthe image at right needs to be expressed as “a ÷ b”. In some cases users will not be able to detect any change to the formulas, but by using the correct “behind the scenes” coding the formulas will be screen-reader friendly.

We have recently contacted the agencies that are responsible for legislation that contains these formulas. We have identified the provisions where the formulas are used, and provided Chief Legal Advisers with what we think is appropriate as a one-liner replacement of the existing formula in each case.

Many of the formulas are very simple, but others are complex and will require careful review. Once we have received approved replacement text from agencies, we will make the changes to the website and the visually impaired will be able to “see” these elements in your legislation.

The PCO will make the changes to the documents and replace them on the legislation website using the editorial powers in section 25 of the Legislation Act 2012. That section allows the Chief Parliamentary Counsel to make changes to the way numbers, dates, times, quantities, measurements, and similar matters, ideas, or concepts are referred to or expressed to be consistent with current drafting practice.

Please note that not all formulas are affected and only 12 agencies have been contacted. If you would like further information or have any questions about this process, please contact us.

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December 2016: Judicature Modernisation Project

The Judicature Modernisation Bill has completed its legislative journey, having been split at Committee of the whole House stage into 23 Bills that were assented to on 17 October 2016.

Five of the split-out Acts are especially important to note.

Senior Courts Act 2016

Certain provisions in the Act relating to the High Court Rules and access to information came into force on 18 October 2016. The remainder of the Act comes into force on 1 March 2017.

This Act continues the High Court, Court of Appeal, and the Supreme Court, replacing the Supreme Court Act 2003 and Judicature Act 1908. Many of the provisions in those Acts are retained, albeit in updated language and in a more coherent arrangement. However, there are some changes, including:

  • the existing High Court Rules are deemed to be part of the Act but are now published as the High Court Rules 2016 and treated as if they were a regular legislative instrument (refer PCO Quarterly, September 2016 No 3/16 for further details)
  • the establishment of a judicial panel in the High Court from which Judges can be allocated to hear specific types of commercial cases
  • the Commercial List in the High Court is not continued
  • a High Court Judge now has power in certain cases to issue orders restricting parties from commencing or continuing civil proceedings
  • an appeal against an order or decision of the High Court made on an interlocutory application in civil proceedings requires the leave of the High Court unless the order or decision effectively determines the proceedings (eg an order striking out proceedings or granting summary judgment).

District Court Act 2016

Certain provisions in the Act relating to access to information came into force on 18 October 2016. The remainder of the Act comes into force on 1 March 2017.

This Act replaces the District Courts Act 1947 and reconstitutes the District Courts as a single court with divisions for a Family Court, Youth Court, and Disputes Tribunal. This means that references are now to the District Court, the Family Court, the Youth Court, and the Disputes Tribunal.

Other changes include:

  • increasing the monetary limit of the District Court’s civil jurisdiction from $200,000 to $350,000
  • a District Court Judge now has power in certain cases to issue orders restricting parties from commencing or continuing civil proceedings
  • updating the maximum financial penalty for a number of offences against the Court.

Judicial Review Procedure Act 2016

This Act comes into force on 1 March 2017 and re-enacts, without any substantive change, the Judicature Amendment Act 1972.

Interest on Money Claims Act 2016

This Act (the new Act) comes into force on 1 January 2018. Section 87 of the Judicature Act 1908, and section 62B and 65A of the District Courts Act 1947, which currently provide for interest on debts and damages, are repealed on that date.

The purpose of the new Act is to recognise the cost to a claimant of a delay in the payment of money and provide for an award of interest that realistically compensates for that delay.

The following are key elements:

  • interest is no longer at the discretion of the Court. It must be awarded on all money claims except in very limited and special circumstances
  • the rate of interest is not prescribed but constantly fluctuates in accordance with the Reserve Bank six-month term deposit rate, and interest is compounded so that it yields the per annum simple interest rate over a year
  • interest must be awarded for the period beginning on the day on which the cause of action arose (but if the claim was not quantified on that date, on a later date specified by the Court in its judgment)
  • interest must be calculated using the internet site calculator and the Act sets out how that must be done (with examples, see section 14).

A number of Acts provide for interest to be calculated in accordance with section 87 of the Judicature Act 1908 or section 62B of the District Courts Act 1947. This mechanism obviously won’t work from 1 January 2018. The relevant existing Acts are therefore consequentially amended (Schedule 3 of the new Act).

Electronic Courts and Tribunals Act 2016

This Act comes into force on 1 March 2017. Its purpose is to facilitate the use of permitted documents in proceedings—that is, documents that are electronic in form). It sets out the requirements for permitted documents and their use. The Act applies to any court or tribunal, any particular jurisdiction of a court or tribunal, any court or tribunal located in a particular place, or any particular jurisdiction of a court or tribunal located in a particular place specified by Order in Council. Orders can be made that provide that the Act does not apply to particular classes of persons. Orders are yet to be made under the Act.

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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 bills.office@parliament.govt.nz. 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.

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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.

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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 mo Te Reo Maori/the Maori 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 Maori 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 Maori, and of some Bills being prepared in Maori as well as in English to assist the Maori members to be able to participate in the debates on Bills of particular relevance to Maori. These were published as pamphlets. However, none seems to have been enacted in the Maori language, and these initiatives were, it seems, defunct by about 1900. The Maori 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 mo 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 Maori Language Act 1987 was introduced as an English language Bill in 2014. Before the Maori Affairs Select Committee, submissions on the Bill called for it to be enacted in both Maori 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 Kokiri 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 Kokiri 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 Maori 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 Maori and English versions of this Act are of equal authority, but in the event of a conflict in meaning between the 2 versions, the Maori version prevails.

Given that clause, the accuracy of the translation was of particular importance. The translator engaged by Te Puni Kokiri is a certified interpreter and translator under the Maori Language Act 1987, has provided interpreter services in courts of law, is a national moderator (Maori) for NZQA unit standards, has lectured in te reo Maori 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 Maori 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 Maori, it engaged an independent jurilinguist to undertake peer review of the Maori 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 Kokiri linguistic experts continued to scrutinise the Maori 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 Kokiri 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 Kokiri is considering the policy implications of legislation in dual-language form, as part of its overall Maori Language Strategy programme.

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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.

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 humanrights@justice.govt.nz.

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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.

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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.

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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.

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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 …

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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.

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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 means—perhaps by an exchange of letters, or by agreement—rather 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.

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March 2014: Publication of Legislative Instruments

We cannot release LIs to agencies for publication before they appear in the Gazette.

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 contact@pco.govt.nz.

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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 Turning Policy Into Law FAQ 0.1 for what to expect from your drafter, and what your drafter needs from you [link updated April 2021].

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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.

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

Introduction—new 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)).

Conclusion

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.

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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.

Revisions

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.

Checking

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 www.iso.org/iso/home/about/iso_members.htm.

New Zealand and joint Australian and New Zealand Standards can be checked at www.standards.co.nz 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.

Contact

Standards New Zealand is always happy to check the details and status of a Standard on your behalf:
Phone: 0800 782 632 Email: enquiries@standards.co.nz Web: www.standards.co.nz

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

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March 2013: Incorporation by reference: Legislation Act 2012

Background

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)

Comment

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.]

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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): www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/Carter.pdf.

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).

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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
Publication
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
Publication
LA 2012 "LI series"
"Legislative instruments" (LA 2012 s 4)
Specific status provisions
Discretionary publication under LA 2012 s 14
Tabling
Regulations (Disallowance) Act 1989 (RDA) s 4
Tabling
LA 2012 s 41
Disallowance
"regulations" - RDA 1989 s 2
Specific status provisions

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

Interpretation
Interpretation Act 1999 (IA) s 29 "regulations" - para (e)
Interpretation
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.

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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.

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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.

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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.

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