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Secondary legislation

New: see Secondary legislation reforms at a glance


 What is secondary legislation?

Parliament isn’t the only body that makes laws. It sometimes passes Acts of Parliament that delegate that power to someone else.  Under reforms now before Parliament, all laws made under a delegation like this will soon be called “secondary legislation”. 

Parliament delegates the power to a number of different bodies: the Governor-General, core government agencies (eg the Ministry of Business, Innovation and Employment, the Department of Internal Affairs), bodies in the wider state sector (eg the Electricity Authority), and beyond the state sector, to a number of boards, councils and professional bodies (such as the Dental Council, the Plumbers, Gasfitters and Drainlayers Board and the Social Workers Registration Board).

relationship between primary and secondary legislation examples

(Click on graphic above to view higher quality version)

The different sorts of legislation delegated by Parliament go by a number of titles, some of the most common being “regulations”, “rules” and “Orders-in-Council”—titles that reflect their genuinely different nature and purpose. These titles will remain under the secondary legislation reforms. 

What won’t remain is the way different delegated legislation has been grouped into potentially confusing legal categories: “disallowable instruments”, “legislative instruments” and (though not a statutory term) “tertiary legislation”—the boundaries of which are unclear.  (For example, turning on the arguable question of whether something has “significant legislative effect”.)

Parliament’s Regulations Review Committee (RRC) over the years has highlighted difficulties relating to these categories, and the confusion they can cause.  Read about the RRC’s 2014 inquiry and report »

When they come into force, two new Acts—the Legislation Act 2019 and the Secondary Legislation Act 2021—will implement the RRC’s recommendations for change, and do away with those unnecessary, confusing and ambiguous categories.  The terms legislative instruments, disallowable instruments, and tertiary legislation will disappear, and be replaced by the one single category to be known simply as secondary legislation.

Now one clear category illustration

To create the Secondary Legislation Act and define what constitutes secondary legislation, the PCO reviewed more than 2000 Acts, worked in partnership with more than 30 government agencies responsible for administering those Acts, and identified over 2500 provisions in which Parliament has delegated a power to make secondary legislation.

Every one of those provisions is amended by the Secondary Legislation Act 2021 to state expressly that instruments made under those provisions are secondary legislation.

Benefits

When the reforms contained in the Legislation Act 2019 and the Secondary Legislation Act 2021 come into force (expected later in 2021), there will be certainty about what counts as secondary legislation.  It will include only things which Parliament has judged to have legislative effect (ie that make or change the law, rather than just apply it in a particular case).

New Zealanders will also have a much better idea of what secondary legislation has been made or is in force, where it must be published, and what Parliamentary oversight applies to it.

Parliamentary oversight

Parliament’s ability to oversee secondary legislation will be enhanced because the Legislation Act 2019 clearly establishes where secondary legislation must be published, whether it must be presented to Parliament, and whether Parliament can disallow it.

The Act also introduces a new requirement for the PCO to make an annual report to Parliament identifying the quantity of secondary legislation made the preceding year that has not been presented to Parliament because of an exemption in the Act under which it is made (for example for reasons of national security).  PCO can also include in the report any other matters relating to the design, drafting and publication of legislation the PCO thinks appropriate. This will serve to further enhance not only Parliamentary scrutiny but also PCO’s stewardship of legislation.

Ongoing access improvements

Under its stewardship role, the PCO will continue to build on the initial benefits created by the secondary legislation reforms, taking steps to improve New Zealanders’ ability to access secondary legislation. 

Currently all PCO-drafted secondary legislation is available in full on the New Zealand Legislation website.  But secondary legislation drafted by other agencies (which is the majority) can be more difficult to find.  This is because publication requirements for these vary: some are notified or published in the New Zealand Gazette, some are published on individual agency websites, some in newspapers. 

Incremental changes to the New Zealand Legislation website will provide:

  • information under each provision in an Act that empowers someone to make secondary legislation, as to how they must publish that legislation, whether it must be presented to Parliament, and whether Parliament can disallow it
  • direct links to the full text of all PCO-drafted secondary legislation
  • information for users indicating where secondary legislation drafted by agencies other than PCO may be found.

As these improvements are delivered, agencies that make secondary legislation will have the opportunity to exercise their own stewardship by improving the availability and organisation of their collections of secondary legislation, so that they are up-to-date and accessible on their individual websites.

The Legislation Act 2019 envisages a further stage of reform and access improvements, which would lead to secondary legislation drafted by agencies other than PCO also being listed, or even published in full, on the New Zealand Legislation website. 

These provisions are subject to future government decisions and will not be triggered on main commencement of the legislative reforms in 2021.

Secondary legislation news

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

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