Notifying CPTPP secondary legislation

Secondary legislation that has international transparency obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) must be accessible from the NZL website.

If the secondary legislation is drafted by the PCO, it is published in full on the NZL website which satisfies CPTPP obligations.

If it is not drafted by the PCO, the maker of this legislation must notify the PCO when they make, amend, or revoke the secondary legislation.

See an overview of CPTPP publishing requirements , or read on for more detail.

See below for How to notify CPTPP secondary legislation to the PCO.

Additional publication requirements under the CPTPP

Section 75 of the Legislation Act 2019 prescribes additional publication requirements that apply to some secondary legislation to meet transparency obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The CPTPP is a free trade agreement between New Zealand and 10 other countries in the Asia–Pacific region. Under the CPTPP’s transparency provisions (Article 26.2), CPTPP parties are obliged to make “regulation[s] of general application adopted by its central level of government respecting any matter covered by this Agreement” available on a “single official website”.

Secondary legislation that is drafted by the PCO is published in full on the NZ Legislation website. This satisfies the CPTPP obligations.

For secondary legislation that is not drafted by the PCO, sections 75 to 77 of the Legislation Act 2019 impose additional publication requirements that must be complied with in order to satisfy the CPTPP obligations.

In general terms, the requirements of sections 75-77 apply to secondary legislation not published by the PCO that:

• is made after the entry into force of the CPTPP agreement (30 December 2018); and

• is made by a Minister or central government entity (ie a Department, Crown entity, or the Reserve Bank); and

• relates to matters covered by the CPTPP.

The Ministry of Foreign Affairs and Trade has identified provisions that it considers empower the making of secondary legislation that relates to matters covered by CPTPP.

The makers of that secondary legislation that meets these criteria must:

• publish the secondary legislation on a website maintained by or on behalf of the maker

• include in or with the secondary legislation so published such “details” as are necessary to comply with CPTPP transparency obligations (specifically, a statement of their purpose and rationale)

• forward “links” to the secondary legislation to the PCO for publication on the NZ Legislation website.

Meaning of “details” and “links”

Section 76 of the Legislation Act 2019 requires the Chief Parliamentary Counsel to issue directions to makers setting out, in general terms:

• the nature of their details

• the nature of their links and the form and manner in which they are to be forwarded.

These matters are set out in the Legislation Act (Publication for International Transparency) Direction 2021.

Details

Paragraph 5 of Article 26.2 of the CPTPP requires the secondary legislation to be published with an explanation of its purpose and the rationale for it. This requirement is set out in clause 4 of the Legislation Act (Publication for International Transparency) Direction 2021.

Some secondary legislation will already contain this information. If not, the maker should include the information in an explanatory note to the secondary legislation, or on  the page on the maker’s website where the secondary legislation is published.

If a regulatory impact statement, risk assessment or a summary of consultation has been published that explains the policy behind the secondary legislation, a link to that should be provided.

Links

The Legislation Act (Publication for International Transparency) Direction 2021 sets out the “links” that must be forwarded to the PCO.  They are:

(a)    the Title of the secondary legislation

(b)    the empowering Act

(c)     the year the secondary legislation is made

(d)    the administering agency

(e)    the URL for a webpage on the maker’s website at which—

(i)      the full text of the secondary legislation is published; or

(ii)    the Title of the secondary legislation is published, along with a hyperlink to the full text of the secondary legislation.

How to notify CPTPP secondary legislation to the PCO

 The maker of CPTPP secondary legislation (or someone acting on their behalf) must email the following information to publications@pco.govt.nz.

1 The agency that administers the secondary legislation (not the empowering legislation).

2 For a page on the agency's website (or the Gazette) at which the instrument can be accessed. If an instrument is published as a PDF file, agencies are requested to send a URL for a “landing page” from which the PDF can be accessed.

3 You can search for other instruments by title or year at legislation.govt.nz/searchadvanced.aspx.