List of access keys

Secondary legislation

What is secondary legislation?

Secondary legislation is legislation that Parliament has delegated to another a person or agency to make, with the power to do this contained in specific provisions in primary legislation (ie Acts of Parliament). It is written by many different entities, as well as the PCO.

Parliament delegates the power to make legislation to government agencies (eg the Ministry of Business, Innovation and Employment, the Department of Internal Affairs) and the wider state sector (eg the Electricity Authority). Beyond the state sector, Parliament also delegates to a number of boards and councils (eg Racing New Zealand, and professional bodies such as the Dental Council, the Plumbers, Gasfitters and Drainlayers Board, and the Social Workers Registration Board).

Over the years, in addition to going by a number of different titles such as “regulations”, “rules”, “Orders-in-Council”, etc, which reflect their genuinely different nature, delegated instruments had also been grouped into a number of potentially confusing legal categories—“disallowable instrument”, “legislative instrument”, and though not a statutory term, “tertiary legislation”.

The boundaries of these categories have also been unclear (eg turning on the arguable question of whether something has “significant legislative effect”), leading to real uncertainty and doubt about legal rights.

Thanks to two new Acts—the Legislation Act 2019 and the Secondary Legislation Bill (when it becomes law)—these unnecessary, confusing and ambiguous categories (Legislative Instrument, Disallowable Instrument, Tertiary Instrument) will soon be replaced by one single category to be known simply as “secondary legislation”.

Once the legislative reforms commence, instruments will be unambiguously categorised as secondary legislation, and they will be categorised as such only if Parliament has judged that they genuinely have legislative effect (ie make or change the law, rather than just apply it in a particular case).

Accessing secondary legislation

Ready access to the law is fundamental to a democratic society based on the rule of law.

While all primary legislation (Acts of Parliament) is published and easily accessible in consolidated form on the New Zealand Legislation website, most secondary legislation, as it will soon be called, is not.

Secondary legislation that has been drafted by the PCO is published in full on the New Zealand Legislation website.

But secondary legislation drafted by other agencies—which is the majority—can be much more difficult to find. Some is notified or published in the New Zealand Gazette; some is published on individual agency websites, or in newspapers.

This means there has been no definitive way for New Zealanders to know what secondary legislation has been made, or is currently in force.

Parliament’s Regulations Review Committee (RRC) has highlighted difficulties relating to the many categories of legislation that will soon be called secondary legislation. Read about the RRC’s inquiry and report »

Implementing the RRC’s recommendations

The Legislation Act 2019 and the Secondary Legislation Bill (currently before Parliament) provide the legal changes necessary to implement recommendations in the RRC’s 2014 report (see link above). Together these reforms will provide the legislative authority for ensuring for the first time that all New Zealand’s secondary legislation is clearly identified.

To create the Secondary Legislation Bill and define, unambiguously, what constitutes secondary legislation in New Zealand, the PCO surveyed more than 2000 Acts, Bills and instruments, worked with more than 30 government agencies responsible for administering the legislation, and identified some 3000 provisions in Acts which empowered the making of secondary legislation.

To deliver the reforms, every one of those provisions has been amended in the Secondary Legislation Bill to state expressly that instruments made under those provisions are secondary legislation.

Locating secondary legislation

Once the Secondary Legislation Bill has been enacted and commenced, alongside relevant provisions in the Legislation Act 2019, changes will be made to the New Zealand Legislation website to make it easier to find pieces of secondary legislation.

On the New Zealand Legislation website, under each provision in an Act that empowers someone to make secondary legislation, there will be:

  • information on how that secondary legislation must be published, whether it must be presented to Parliament, and whether Parliament can disallow it
  • a link to take the user to the full text of all secondary legislation that has been drafted by the PCO under that provision
  • information to direct users to where secondary legislation drafted by agencies other than PCO can be found.

Secondary legislation news

Read Technical Updates and earlier news outlining the development of secondary legislation »

Questions?

If you want to get in touch with PCO about secondary legislation or would like to receive our Technical Updates, email us at Access2SL@pco.govt.nz.

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