Drafting practice and model clauses

PCO has an ongoing programme of developing agreed solutions to common problems in legislation. The solutions include drafting practices and standardised or model clauses for commonly used components of legislation. This work improves effectiveness, certainty, and efficiency, and directly contributes to our statutory objective of promoting high-quality legislation that is easy to find, use, and understand.  

This page describes some of the drafting practices and standard and model clauses that we currently use, and links to further information about them.

Where drafting practice has been settled and clauses have been standardised, drafters will implement this practice, in some cases choosing from among a few standardised wording options based on your instructions. Drafters have limited—usually no—ability to diverge from the practice or standard. If you are instructing PCO and would like to discuss the practice or standard clauses, you should raise this with us through your drafter.  

Commencement clauses

We have settled drafting practice and wording for commencement clauses. These clauses use provisions in the Legislation Act 2019 and promote consistency and best practice for the range of commencement scenarios that we are instructed on. Your drafter will choose from among several standard wording approaches based on your instructions.

The clauses provide for standardised wording for the range of commencement options ranging from simple situations to the more complex. There is guidance setting a strong preference for a fixed and practical date of commencement (rather than a rule for commencement such as 3 months after Royal assent), a preference for Order in Council commencement over the date of an event, and for providing for a default commencement date. The standard wording uses provisions of the Legislation Act 2019, which clarified certain matters relating to commencement (see in particular sections 25 to 29, and 43).

Empowering provisions—standard practice and provisions

We have settled drafting practice for empowering provisions for secondary legislation, including new, plain language standard wording for the catch-all or residual regulation making powers and the wording of provisions that identify an instrument as secondary legislation (a tag clause) and of PPD tables (tables that set out information about publication, presentation, and disallowance). The Regulations Review Committee has endorsed the new standard wording, and our practice is not to diverge from it. Our settled practices cover:

• ensuring it is clear which section or subsection is the empowering provision

• ensuring the maker of the secondary legislation is clearly identified

• limiting the different labels used for secondary legislation, and avoiding some

• how to use the new catch-all or residual regulation making power. The new wording provides:

• the machinery for making regulations to cover cases where the Act already refers to things being “prescribed” or made “by regulations” (the contemplation power)

• a limited power, which will seldom be used, to make regulations to cover minor matters that complement something else already in the Act

• no longer including a specific power in the empowering provision if it would only “double-up” on the contemplation power. For example, if an Act refers to forms prescribed in regulations, it is enough to rely on the contemplation power

• when a specific power is needed (eg to add details to clearly and precisely set out the permitted subject matter or purposes of a particular regulation and any preconditions)

• the use of tag clauses (the provision that specifies that an instrument made under an empowering provision is secondary legislation) and publication, presentation, and disallowance (PPD) tables.

Transitional and savings provisions—standard practice and provisions

Our settled drafting practice is to put transitional and savings provisions relating to amendment Acts or amending secondary legislation in a schedule to the principal Act or secondary legislation.

The transitional and savings schedule is always the first schedule to the relevant principal Act. A schedule will always be inserted in a new principal Act as Schedule 1, even if there are no transitional or savings provisions relating to the Act as first enacted. We also have settled practice and standard wording for the operative clauses and arrangement of the schedules.

Generally, a transitional or savings provision will remain in the schedule even after it is spent. This ensures that an Act or secondary legislation retains a complete record of these provisions over the life of the legislation.

Infringement regimes

We have settled drafting practice and wording for infringement regimes. We use these standard clauses when instructed to include an infringement regime in legislation. The standard clauses allow for certain policy choices to be made. The practice and standard clauses are designed to support consistent and effective drafting of infringement regimes.

An infringement regime in a subject-specific Act (eg the Financial Markets Conduct Act 2013, the Litter Act 1979) relies for its workability on a combination of the subject-specific Act's provisions, the Summary Proceedings Act 1957, the Summary Proceedings Regulations 1958, and the Criminal Procedure Act 2011. The standard clauses are designed around this relationship. 

Pecuniary penalties

The Government accepted in principle a recommendation of the Law Commission that PCO draft model provisions for common pecuniary penalty provisions, subject to further work being done on model provisions. These clauses are under development. Once finalised, they will act as a companion to Chapter 26 of the Legislation Guidelines (2021 edition) on pecuniary penalty regimes.

If you are instructing on a new pecuniary penalty regime, you may wish to engage with PCO’s Legislative Stewardship team through your drafter about progress on the standard clauses and the key policy choices that need to be made.

Goods and Services Tax

PCO’s settled drafting practice is to state amounts for new regulatory charges as exclusive of GST. PCO also has a policy of clarifying the GST position for existing charges when a reasonable opportunity to do so arises (for example, when a particular set of regulations is next substantively amended). This practice was settled in 2018 and resulted from the practical difficulties in stating fees and levies on a GST-inclusive basis.

Agencies should instruct using GST-exclusive amounts for new regulatory charges, and consider the GST position for any other charges in any principal legislation. Parliament has also clarified that new regulatory charges are subject to GST in most circumstances and provided for a transition for existing charges (see Goods and Services Tax Act 1985, section 5(6EC) and related provisions from 1 July 2023).

Treaty settlement Bills—clauses for standard elements

The Attorney-General and Minister for Treaty of Waitangi Negotiations decided on 22 January 2013 that standard clauses are to be used in new Treaty of Waitangi Settlement Bills covering redress that is common to most settlements.

More about the standard Treaty clauses

Model clauses for alternative dispute resolution

These model clauses form a companion-piece to Chapter 29 ("Including alternative dispute resolution clauses in legislation") of the Legislation Guidelines (2021 edition). The Guidelines provide that these should be used when designing an ADR process.

More about the model clauses