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Technical Update April 2020

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In this update

Haere mai

Our third issue of the PCO’s Technical Update goes out to readers living and working in a vastly different world. We recognise this is an enormously challenging time for all, and hope that wherever you are and whatever you are doing as you receive this update in the time of Covid‐19, you and those you care for are safe and well.

Like so many of us inside and outside the public service, our work at the PCO progresses in the face of the current challenges, and we are pleased to report significant progress on the secondary legislation reforms since our October Update.

The Legislation Bill defining what will be secondary legislation received Royal assent in October last year, just after our last Update was sent out.

The Secondary Legislation Bill, further defining what instruments are secondary legislation and simplifying the law relating to it, was introduced in early December.

Consideration of the Secondary Legislation Bill by the Regulations Review Committee has continued even into these uncertain times. The good news is that we are getting closer to seeing the Bill reported back to the House.

We hope this Update provides some interest and perhaps a brief diversion from the challenging realities of our current times.

Noho ora mai,
Jonathan Robinson, Deputy Chief Parliamentary Counsel (Access)

Thank you

If you are one of the many people in agencies who have worked with the PCO’s secondary legislation team over the months and years it has taken to get the Secondary Legislation reforms to this point, we thank you once again for your continued commitment and support.

Your knowledge, patience and often painstaking attention to detail has helped ensure that the first stage of the reforms – defining what is secondary legislation and in so doing, reinforcing New Zealand's commitment to open government and the rule of law – is now in the hands of the legislators themselves. The homeward straight is in sight.

SLB in the House

The SLB progresses even in the time of Covid‐19

Bill historyFollowing the introduction and first reading of the Secondary Legislation Bill (SLB) late last year, the SLB has been progressing through Parliament, within the reduced Parliamentary processes in place during New Zealand's Covid‐19 response.

The Regulations Review Committee (RRC) received nine submissions on the Bill and held public hearings in March. Members have been considering various aspects of the Bill and at this stage the RRC’s intention continues to be to report back to the House in June (as illustrated in the Bill History graphic, copied from the Parliamentary website).

While physical meetings of the RRC have been on hold during New Zealand's Level 4 and Level 3 response, the PCO continues its work to support the Committee.

This includes preparing a Revision Tracked (RT) version of the SLB, which will include the Select Committee’s changes to the version of the Bill introduced in December.

Most significant are likely to be additions to the SLB schedules, incorporating amendments to provisions empowering the making of secondary legislation in Acts passed since the introduction version of the SLB was drafted. The SLB as introduced incorporated amendments for all relevant Acts on the New Zealand statute book as of 31 May 2019.  The RT version is likely to add in amendments to empowering provisions found in Acts passed between June and December 2019.

Further changes to cover Acts made between January 2020 and the commencement of the SLB will be made at a later date. More details and information on the SLB are available on the Parliamentary website »

The new Legislation Act 2019

A key part of the secondary legislation reforms becomes law

The first of the two pieces of legislation creating New Zealand's secondary legislation reforms is now law. The Legislation Act 2019 received Royal assent in October (just a short time after our last Technical Update was issued). The Act will come into force when its companion legislation the SLB commences, expected to be some time in the first half of 2021.

The Legislation Act (section 5) defines secondary legislation; the SLB implements that definition by identifying which instruments empowered by provisions in Acts of Parliament are classified as secondary legislation.

View the Legislation Act 2019 on the New Zealand Legislation website » Read more about the Legislation Act 2019, its connections to the SLB, and what else it does, including updating and replacing the Legislation Act 2012 and the Interpretation Act 1999 on the PCO website. For more about the relationships between the Secondary Legislation Bill and the Legislation Act, see the Status Quo Publication story below.

Status quo publication

Finding ways to help you find publication requirements

Our last Technical Update advised of:

  • the decoupling of the legal reforms defining secondary legislation from the future requirement for centralised publication, and
  • the preserving of all current publication, presentation and disallowance requirements in the interim.

You can read more about the context for preserving current publication requirements on the SLB pages on the PCO website: the relevant parts of that are repeated, for convenience, below.

Once the SLB and Legislation Act 2019 commence, the provisions in the relevant primary legislation that empower the making of secondary legislation will be amended.

The effect of that will be that current publication, presentation and disallowance requirements which apply to instruments written under those provisions, will no longer be visible in their principal Acts on the New Zealand Legislation website.

To overcome any inconvenience this may cause, the PCO is working out how to display the saved publication requirements in a way that will help users and makers of secondary legislation know and identify what they are.

It is in fact no simple task to discern and codify the existing publication arrangements for secondary legislation, which vary according to the different pieces of primary legislation that empowers them.

Our aim is to create a functional way to show the requirements alongside the relevant provisions of the relevant Acts on the New Zealand Legislation website.

We have begun trialling how this might be done effectively and hope to report on the outcome in a future issue of the Technical Update.

Extract from the PCO website: Secondary Legislation Bill

The Secondary Legislation Bill and the Legislation Act 2019 will be brought into force at the same time. From that point, the definition of secondary legislation will apply to all relevant instruments, and they will generally be disallowable by the House of Representatives. The publication requirements that applied immediately before commencement will be preserved (see sections 73 and 74 of the Legislation Act 2019). (The centralised publication requirements in future amendments to Part 3 of the Legislation Act 2019 (found in the Legislation (Repeals and Amendments) Act 2019) take effect later when commenced by Order in Council.)

The Bill amends over 550 Acts. The amendments are set out in Schedules 1 to 32, and are arranged by administering agency. To make it easier to find amendments to particular Acts in the Bill, we have prepared an alphabetical list of all the Acts amended and the schedule(s) in which they are amended.

Access this page on the PCO website »

Get yourself ready for the Secondary Legislation Act

There is work to be done …

In the period leading up to the passing of the SLB and its anticipated commencement in 2021, there is plenty that agencies responsible for secondary legislation can do to prepare themselves for government and stakeholder expectations in the new environment.

The PCO has been communicating with agencies that administer primary legislation and makers of secondary legislation for some time through workshops, meetings and the Technical Update, about what they can do to get ready.

What should you do now?

  1. Find all your secondary legislation
  2. Make it available online
  3. Keep your collection up to date
  4. Consider consolidating, or better still revoke and replace

Making all their own secondary legislation available to stakeholders and members of the public who will want to see it online, will be an important follow‐up for agencies, to the passing of the reforms.

We encourage you, when life resumes some kind of normality in a post‐Covid‐19 future, to consider putting aside some time and resource to complete the task of finding and collating all the secondary legislation you are responsible for, and identifying how best to make it accessible.

On commencement of the SLB the PCO plans to link directly from Acts on the New Zealand Legislation website to websites where the secondary legislation related to those Acts is published. (If the legislation cannot for some reason be made available on a website, PCO will identify the agency responsible for it).

It is likely therefore that we will link to the home page of the responsible agency – or better still if the agency can do it, to a dedicated secondary legislation landing page or index on their site.

By considering ahead of time the best ways to organise your secondary legislation and make it available online, both agencies and the wider government will be well‐placed to serve the government’s overall object of the reforms – to give New Zealanders access to secondary legislation that impacts their lives.

Who are these updates for?

This Technical Update is prepared by the secondary legislation team in the PCO.

It is written in the first instance, for legal and technical people with a working interest in the development of the new category of secondary legislation in:

  • government agencies that administer primary legislation, and
  • the many entities both government and non‐government, empowered to make secondary legislation.

Increasingly, however, as secondary legislation is defined through the Legislation Act 2019 and the Secondary Legislation Bill, we are finding the Updates are also of interest to future users of secondary legislation in government, legal and academic circles.

We welcome you to our readership, but note that the Update does assume some knowledge and familiarity with the development of secondary legislation and the work being done by PCO and administering agencies to define it.

If you would like to be added to the mailing list, we’re happy to do so. Just send us an email to Access2SL@pco.govt.nz.

If you would like to stop receiving the Technical Update, also advise us via the same email address.

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