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Secondary legislation reforms

Reforms implemented on 28 October 2021 by the Legislation Act 2019 and the Secondary Legislation Act 2021 provide a single category of secondary legislation, with clear rules for parliamentary oversight and publishing requirements. More about the Legislation Act 2019 »

Single category of secondary legislation

The secondary legislation reforms have established a simple single category of law, where previously there were several overlapping and confusing categories.

Secondary legislation is law made:

  • by someone other than Parliament
  • under a power that Parliament has formally delegated in a particular Act.   

A small amount of secondary legislation is made not under an Act but under the Royal prerogative. Secondary legislation is defined in section 5 of the Legislation Act 2019.

Some examples of secondary legislation

shows a variety of secondary legislation stemming from Acts

(Click on graphic above to view higher quality version)

The different sorts of legislation delegated by Parliament go by various titles, some of the most common being “regulations”, “rules”, and “Orders in Council”. These titles reflect their different nature and purpose, and remain in use following the secondary legislation reforms. 

What doesn’t remain is the way different secondary legislation has been grouped. Categories like “disallowable instruments”, “legislative instruments”, and (though not a statutory term) “tertiary legislation” were potentially confusing with unclear boundaries. Parliament’s Regulations Review Committee identified problems with those categories in its 2014 Inquiry into oversight of disallowable instruments that are not legislative instruments

The resulting reforms mean there is now one single clear category of secondary legislation.

Every provision in an Act that allows secondary legislation now clearly states that instruments made under that provision are secondary legislation.

Parliamentary oversight—presentation and disallowance

The reforms make clear that all secondary legislation must be presented to Parliament, and can be disallowed by Parliament, unless Parliament has given a specific exemption, or a transitional exemption applies to the presentation requirements.

Publishing requirements

For secondary legislation made under provisions enacted before 28 October 2021, there is no change to how it must be published. The publishing requirements remain the same, but the PCO makes this legislation easier for users to find by adding notes on the New Zealand Legislation website—see Tables in legislation below.

For secondary legislation made under provisions enacted on or after 28 October 2021, new uniform publishing requirements apply. Secondary legislation must be notified in the New Zealand Gazette and published in full online:

Again, the PCO is making this legislation easier for users to find by adding notes on the NZ Legislation website—see Tables in legislation below.

Further reforms are possible in the future so that all secondary legislation is available on one central website. However, these would require significant new IT and business systems, and future government decisions.

Meanwhile, the reforms provide an opportunity for all bodies that make secondary legislation to improve their stewardship by making secondary legislation easier for users to find and understand.

Tables in legislation showing publishing, presentation, disallowance requirements

The Secondary Legislation Act 2021 has amended each provision in every Act in the statute book that gives a person or body the power to make secondary legislation, stating this clearly. It has also inserted references to Part 3 of the Legislation Act 2019 about publication requirements.

At the same time, the PCO has added a new table under each provision that identifies a power to make secondary legislation. This table sets out the publication, presentation, and disallowance requirements for the secondary legislation. The table is not part of the legislation, but is included to help users by capturing the requirements in an easily understood format. Explicit publication requirements will make it easier for users to find the secondary legislation.

Note that on 28 October 2021, when the Secondary Legislation Act 2021 commences, not all of the over 2,700 provisions that Act amends will be updated on the NZ Legislation website right away. The PCO will reprint the affected Acts in the period after commencement of the Secondary Legislation Act 2021.

Secondary legislation news

Read earlier news outlining the development of secondary legislation »

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