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Technical Update October 2019

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Technical Update Oct 2019

In this update

Haere mai

This is the second Technical Update for the Access to Secondary Legislation Project. In this edition, we:

  • describe changes to the Legislation Bill being made by a Supplementary Order Paper (SOP) released this week and provide links to the relevant Cabinet papers. The changes:
    • decouple the legal reforms to define secondary legislation from the future requirement for centralised publication of secondary legislation and
    • preserve current publication requirements for the short term.
  • signal the timeline for introducing the Secondary Legislation Bill (formerly known as SLAB) and for consultation on the related Cabinet paper.

Noho ora mai,
Fiona Leonard, Chief Parliamentary Counsel

showing legal reforms decoupled from future publications requirements

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Summary of recent developments

The ambition of the Secondary Legislation project remains constant

There are two main components required to implement the project: the first is legal, and the second related to establishing an IT-based publication service.  These comprise:

  1. Rationalising and simplifying the law relating to secondary legislation.
  2. Establishing a secondary legislation service within the PCO to give effect to the publication requirements contained in the Legislation Bill. This includes:
    a. Developing, implementing, and operating a lodgement and publication system for use by departments and agencies when they make secondary legislation. This system is likely to include some form of authoring system.
    b. Modifications to the PCO’s existing publishing system and the NZ Legislation website to:
    • enable Legislative Instruments and secondary legislation drafted by departments and agencies to be listed and published on the website, and
    • simplify, broaden and improve access.
    c. Changes to the processes in agencies for publishing instruments to take advantage of the new centralised publication.
    d. Providing initial and ongoing support to agencies to use the service.
Decoupling new publication requirements from legal changes

In September Cabinet agreed to decouple the implementation of the law changes (1 above) from the establishment of the centralised publication envisaged (under 2 a-d above).

The key implication of this is that the legal changes can be accelerated, and the two Bills brought into effect sooner, without waiting for the necessary IT and related business systems to be developed to support centralised publication.

This will deliver the benefits of resolving the current ambiguity about what is secondary legislation, and clarifying what instruments are subject to Parliamentary oversight through the disallowance process.

These legal clarifications will, in themselves, resolve some of the concerns raised by the Regulations Review Committee in its 2014 Inquiry into the oversight of disallowable instruments that are not legislative instruments, which led to the project being established.

The Legislation Bill will still contain the provisions that enable centralised access to agency-drafted secondary legislation, so that they can be commenced as required as soon as the necessary IT systems and related business processes are in place.

In the intervening period, makers of secondary legislation will be required to continue to publish in accordance with their existing publication requirements (except for a few small exceptional cases, which PCO will bring to the attention of the relevant organisations).

The Cabinet paper relating to the Implementation of the Legislation Bill has been proactively released on the PCO website. Read it here »

The Legislation Bill SOP—The detail

Staged implementation

The Attorney-General released the Supplementary Order Paper (SOP) for the Legislation Bill on Tuesday 15 October. In further detail, the changes in the SOP are designed to:

  • enable both the Legislation Bill and Secondary Legislation Bill to be commenced shortly after they are enacted, defining one coherent class of secondary legislation and clarifying what is subject to Parliamentary oversight through the disallowance procedure
  • preserve the existing publication requirements for now
  • introduce flexibility about when the obligations for agencies to lodge information about their secondary legislation with the PCO take effect.

Currently, the Legislation Bill provides that from its main commencement date (i.e., the date on which it repeals and replaces the Legislation Act 2012), Makers of secondary legislation will have one year in which to lodge details of all their in-force secondary legislation with the PCO for publication on the New Zealand Legislation website.

This would mean that the PCO would need to have the systems and processes in place to enable agencies to lodge information about their secondary legislation with the PCO, before the Bills are commenced.

The changes in the SOP will instead preserve for the time being, the current publication requirements for agency-drafted secondary legislation.

The Cabinet paper relating to the Legislation Bill SOP has been proactively released on the PCO website. Read it here »

Key SOP provisions

See the SOP here »

Some of the key provisions added by the SOP are:

  1. Clauses 68-77 in Part 3 have been revised so that, on commencement:
    • the obligations of the PCO to publish secondary legislation are limited to the legislation it drafts, and
    • generally, other agencies that draft secondary legislation must continue to publish it in accordance with existing publication requirements (if any), rather than lodging it with the PCO for publication. (PCO will draw to the attention of relevant organisations the few exceptional cases where there are small changes to the current publication requirements).
  2. The original provisions in Part 3 of the Bill that relate to lodgement of secondary legislation (and information about it) with the PCO for publication on the NZ Legislation website, are relocated to Schedule 7, for later commencement by Order in Council. When Schedule 7 is commenced, it will replace clauses 68-77 of Part 3, reinstating the lodgement and publication obligations for agency-drafted secondary legislation.
  3. The new clause 74 in Part 3 prescribes how agencies must publish secondary legislation drafted by them (the “applicable publication requirements”). In most cases, those will be the publication requirements in force before the commencement of the Bills. However:
    • the PCO may make minor modifications to pre-existing publication requirements to the extent necessary to ensure they still work effectively in light of other amendments made to the empowering provision
    • for empowering provisions in legislation enacted in the future, where there is no specified publication requirement, secondary legislation must be published in ways that meet generic minimum requirements to be set by regulations under the new Legislation Act.
  4. Publication requirements that apply to secondary legislation with international transparency obligations under the CPTPP (currently set out in Part 2A of the Legislation Act 2012) are carried forward in clauses 75-77.
  5. Under clause 14 of Schedule 1, the PCO will record and publish the publication requirements that applied immediately before the commencement date of the relevant provisions of the Bill (with minor modifications referred to above). This will help ensure those publication requirements are easy to find.
  6. The provisions which set deadlines for agencies to lodge details of all secondary legislation with the PCO for publication on the New Zealand Legislation website will be commenced later, with a backstop (as now) of five years.

Various other useful reforms to the statutory framework for legislation in the Legislation Bill will come into effect (such as updating and relocating the Interpretation Act 1999, updating the Legislation Act 2012, and enacting disclosure requirements for government-initiated legislation).

Progress of Secondary Legislation Bill (SLB)

November introduction anticipated

The PCO has nearly completed drafting and quality assurance checks of the Secondary Legislation Bill (formerly known as “SLAB”).

We will shortly begin consultation on the Cabinet paper seeking approval to introduce the SLB.

The Bill contains more than 3,800 amendments to empowering provisions in some 600 Acts.

PCO takes this opportunity to thank our colleagues in departments and Maker organisations who have worked tirelessly with us over the past two years to get the SLB to the point of introduction.

The plan is to submit the Cabinet paper and Bill to the Cabinet Legislation Committee in November 2019, and introduce the Bill before Parliament rises for the year.

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