Process to enter into or end a drafting agreement

This page contains information for agencies seeking to enter into or end a “drafting agreement” under the Legislation Act 2019.

In general, the PCO drafts all Government Bills (except Inland Revenue Bills), and secondary legislation made by Order in Council or that amends an Act.

The PCO also drafts other secondary legislation if the administering agency and the Chief Parliamentary Counsel agree or if the Attorney-General directs.

If legislation is drafted by the PCO it is published on the NZ Legislation website.

See section 67 of the Legislation Act 2019 for these default rules.

See also clauses 23 and 24 of Schedule 1 of the Legislation Act 2019 for transitional provisions that establish deemed drafting agreements that apply where the PCO drafted (and published) the instrument prior to the main commencement date of the Legislation Act 2019 (28 October 2021).

You can identify if there is a drafting agreement in place in relation to an empowering provision by looking at the publication note under the relevant empowering provision, which sets out the relevant publication, presentation, and disallowance requirements. If the PCO drafts, the table will state that the PCO must publish the relevant secondary legislation. See also Legislation drafted and published by the PCO which lists empowering provisions for which drafting agreements and Attorney-General directions are in place.

If an agency considers that secondary legislation that they are currently drafting should be drafted by the PCO instead – or vice versa – they can request a change, following the processes below.

Process to enter into a drafting agreement

1. The administering agency for secondary legislation made under the empowering provision approaches the relevant Parliamentary Counsel Team Manager (PCTM), setting out their view and reasons.

2. The PCTM provides advice to the Chief Parliamentary Counsel that sets out:

   • an assessment of the proposal against the factors for consideration when determining who drafts legislation, set out below

   • the proposed transition process, including for publication of any existing instruments

   • the agency's views and the views of the administering agency for the relevant Act (if a different agency)

   • the availability of, and potential impact on, PCO resources

   • a recommendation.

3. The Chief Parliamentary Counsel decides whether to agree in principle to enter into the drafting agreement.

If the Chief Parliamentary Counsel agrees to enter into an agreement:

1. The PCTM arranges for the agreement to be signed by the agency and the Chief Parliamentary Counsel.

2. The page Legislation drafted and published by the PCO is updated.

3. The publication, presentation, and disallowance table relating to the empowering provision is updated on the NZ Legislation website, if necessary.

4. Following the transfer, the agency instructs the PCO to draft, and any new secondary legislation is published on the NZ Legislation website. The PCO may also choose to republish existing instruments that were drafted by the agency (see section 69(3) of the Legislation Act 2019).

Process to end a drafting agreement and transfer publication to the administering agency

A similar process applies to end a drafting agreement.

However, because the PCO generally only publishes secondary legislation that it drafts, the process also includes transfer of responsibility for publication to the agency. In the case of empowering provisions covered by clauses 23 and 24 of Schedule 1 of the Legislation Act 2019, an amendment is required to the Legislation (Publication) Regulations 2021 to establish publication and presentation requirements (that the agency publish the secondary legislation on its website and notify it in the Gazette, and arrange presentation to the House).

In addition, the PCO considers why the PCO currently drafts. For example, in many cases there was previously a legislative requirement that the PCO draft and publish, which has transitioned into a deemed drafting agreement under clause 23 of Schedule 1 of the Legislation Act 2019.

The agency must ensure their Minister is briefed on the change and the administering agency for the empowering provision (if different) has been consulted. The PCO also requires the agency to enter into a transition agreement, which may require the agency to replace and republish existing secondary legislation, and adopt best practice drafting and publication practices (see Making secondary legislation ) for a fixed period following the transfer.

1. The administering agency for secondary legislation made under the empowering provision approaches the relevant Parliamentary Counsel Team Manager (PCTM), setting out their view and reasons.

2. The PCTM provides advice to the Chief Parliamentary Counsel that sets out:

   • an assessment of the proposal against the factors for consideration when determining who drafts legislation, set out below

   • an assessment of why the PCO drafts, whether PCO drafting provides a safeguard, whether that safeguard is still required, and any alternative safeguards that the agency may propose

   • the proposed transition process, including for publication of any existing instruments

   • the agency's views and the views of the administering agency for the relevant Act (if a different agency)

   • any implications for PCO resources

   • a recommendation.

3. The Chief Parliamentary Counsel decides whether to agree in principle to end the drafting agreement.

4. Note also that the Attorney-General retains the power to direct that the PCO continue to draft the secondary legislation.

If the Chief Parliamentary Counsel agrees to end the agreement and transfer publication:

1. The PCO’s Manager, Legislative Stewardship (MLS) arranges for the transition agreement to be negotiated and agreed by the agency and the Chief Parliamentary Counsel to end the agreement and transfer publication.

2. The MLS arranges for the drafting of the amendment to the Legislation (Publication) Regulations 2021, if necessary, and for Cabinet consideration.

3. The agency briefs their Minister ahead of Cabinet consideration

4. Once the decision is finalised:

   • the page Legislation drafted and published by the PCO is updated

   • the publication, presentation, and disallowance table relating to the empowering provision is updated on the NZ Legislation website, if necessary

   • the agency gives effect to the requirements in the transition agreement, including any requirements to republish existing legislation and to implement drafting and publication practices.

Factors for consideration when determining who drafts legislation