List of access keys

Process to obtain drafting agreement

In general, the PCO drafts all Government Bills (except Inland Revenue Bills), and secondary legislation made by Order in Council or that amends an Act.

The PCO also drafts other secondary legislation if the administering agency and the Chief Parliamentary Counsel agree or if the Attorney-General directs. See section 67 of the Legislation Act 2019 for the specific default rules. See Legislation drafted and published by PCO for exceptions to the default rules (including drafting agreements and Attorney-General directions).

If an agency considers that secondary legislation that they are currently drafting should rather be drafted by the PCO, they can request this change, following the process below.

By default, if the legislation is drafted by the PCO it is published on the NZ Legislation website.

On this page:

Process to form an agreement to draft secondary legislation

  1. The agency approaches the relevant drafting team manager (DTM), setting out their view and reasons.
  2. The DTM provides advice to the Chief Parliamentary Counsel that sets out:
    • an assessment on the proposal against the factors below
    • the agency's views
    • any resource implications
    • a recommendation.
  3. The Chief Parliamentary Counsel decides whether to enter into the drafting agreement. As well as the factors, the Chief Parliamentary Counsel will consider the availability of, and potential impact on, PCO resources.

If the Chief Parliamentary Counsel agrees to enter into an agreement:

  1. The DTM arranges for the agreement to be signed by the agency and the Chief Parliamentary Counsel.
  2. The page Legislation drafted and published by PCO is updated.
  3. The publication, presentation, and disallowance table relating to the empowering provision is updated on the NZ Legislation website, if necessary.

Factors for consideration when determining who drafts legislation

  Indicators of higher benefit in PCO drafting Indicators of lower benefit in PCO drafting
Significance of the legislation
  • the legislation will apply to or affect all or a significant class of New Zealanders
  • there will be significant consequences of non-compliance (eg, the legislation creates or forms the basis of an offence)
  • the legislation will deal with long-term issues
  • the legislation will have a high public profile
  • the proposed content may raise issues under the Bill of Rights Act
  • the drafting involves a high level of risk (eg, significant consequences if the drafting is unclear or contains errors)
  • the legislation will have constitutional or cultural significance
  • the legislation will apply only to a limited class of persons or in limited circumstances in a specialist field
  • there is little or no risk attached to the drafting exercise
  • the legislation is time bound
Level of legal complexity
  • drafting the legislation will require analysis of complex legal issues (eg complex vires issues)
  • the legislation will need to clearly convey complex legal requirements (as opposed to complex technical details)
  • the legislation will need to closely interface with existing legislation or with other legislation that is being drafted simultaneously by PCO
  • involves a low level of legal complexity
  • interface with existing legislation is limited or straightforward
  • limited vires issues are likely to arise
  • the legislation involves complex technical detail in an area in which PCO has limited expertise
PCO expertise required
  • the legislation must be drafted urgently
  • the content will require coordination/input from multiple departments (PCO client relationships will assist)
  • PCO has previously drafted similar legislation
  • the administering agency is of the view that PCO’s expertise is required
  • no urgent time pressure
  • no inter-agency involvement
  • PCO has not previously drafted similar legislation
  • the administering agency does not consider PCO’s expertise is required
Publication implications
  • The legislation will amend secondary legislation previously drafted by PCO and that is published on the NZ Legislation website     
  • The legislation will be in an equivalent form and format to legislation already published on the NZ Legislation website
  • The legislation is not intended to be published on the NZ Legislation website/does not amend legislation on that site
  • The legislation will have features not readily able to be published or accessed on the NZ Legislation website

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