The Commerce Committee has examined the Regulatory Improvement Bill and recommends that it be passed with the amendments shown.
Introduction
The Regulatory Improvement Bill proposes a number of small but important changes to various Acts, which are designed to improve the regulatory framework and reduce the compliance burden on businesses.
The bill would amend the Companies Act 1993, the Conservation Act 1987, the Designs Act 1953, the Fisheries Act 1996, the Gas Act 1992, the Hazardous Substances and New Organisms Act 1996, the Ministry of Agriculture and Fisheries (Restructuring) Act 1995, the Reserves Act 1977, and the Weights and Measures Act 1987.
This commentary does not cover technical, clarifying, or consequential amendments.
Commencement
We recommend an amendment to clause 2(1) of the commencement clause to make it more certain when Part 3 of the bill, which amends the Designs Act 1953, would come into force. Clause 2(1) as introduced states that Part 3 of the bill will come into force on a date to be appointed by the Governor-General by Order in Council. The reason given for this in the explanatory note is to allow time for regulations to be made to give effect to the changes introduced by the legislation.
On the principle that the public, particularly those who would be directly affected by legislation, should know when legislation comes into force, and because of the uncertainty caused by Parliament delegating commencement to the Executive, this method of commencement is considered appropriate only in rare and exceptional circumstances where it is clearly justifiable.
That the Minister is uncertain when the regulations will be ready is not in our view an adequate reason.
We therefore recommend that clause 2(1) be amended so that Part 3 of the legislation (except clause 14) would come into force on the earlier of either 12 months after the date of the Royal assent or a date to be appointed by the Governor-General by Order in Council. This should allow sufficient time for regulations to be made to give effect to the changes introduced by the legislation.
Inspection of registered designs
We recommend the insertion of new clause 12A, which inserts new section 30(5) into the Designs Act 1953. Section 30(5) gives specific authorisation for the Commissioner to publish bibliographical details of design applications. The Commissioner has released this information in the past, but confusion has arisen over whether the Act as it stands in fact permits this. As the publication of details is desirable to keep the public informed of applications being made, we believe this situation should be rectified by inserting into the Act an explicit authorisation to publish these details.
Restoration of lapsed copyright in registered design and restoration of design applications
We recommend amendments to clause 13, which inserts new sections 41A to 41F into the Designs Act 1953. Sections 41A to 41F allow the restoration of lapsed copyright in registered designs. We believe it would be similarly advantageous to allow the restoration of design applications, which would bring the Designs Act 1953 into line with the Patents Act 1953 (and the Patents Bill currently before the House) which allows both.
We therefore recommend the insertion of new sections 41G to 41J to achieve this.
Amendments to material incorporated by reference in regulations
We recommend the amendment of clause 46 and the insertion of new clause 46A. Clause 46 amends section 141A of the Hazardous Substances and New Organisms Act 1996, which relates to incorporation by reference of material into regulations and other instruments. This clause, however, differs from the Parliamentary Counsel Office’s proposed new standard clauses for incorporation by reference.
The standard clauses prepared by the Parliamentary Counsel Office give effect to principles established by the Regulations Review Committee in its inquiry into material incorporated by reference in 2004. In its 2008 report on this matter the Regulations Review Committee recommended that such clauses be included in the Legislation Advisory Committee’s guidelines, and enacted in a statute of general application so that they need not be re-enacted each time they were required. The Government agreed with both recommendations.
As we are advised that there is no reason that these clauses should deviate from the proposed standard clauses, apart from the exceptions discussed below, we recommend that this bill be amended to conform with them.
We agree that the mechanism for amendment to incorporated material by notification in the Gazette should be retained, as this method has been specifically safeguarded by an express requirement that this material be brought to the attention of the Regulations Review Committee.
We agree that the requirements for consulting on proposed amendments to material incorporated in an instrument match the consultation requirements that apply to the instrument itself. Similarly, we agree the requirements for providing access to material incorporated in an instrument other than regulations should largely match the requirements for providing access to the instrument itself. In the case of regulations, the ministry must ensure that copies of incorporated material were available for purchase, which might include the ministry advising where copies could be purchased.
Plant Variety Rights Act 1987
We considered whether the restoration provisions inserted into the Designs Act 1953 by clause 13 should also be inserted into the Plant Variety Rights Act 1987 as similar issues may arise in this area.
We consider that the current provisions of the Act work well and give the Commissioner of Plant Variety Rights discretion as to whether to cancel a plant variety right because of the non-payment of the renewal fee. We consider that the proposed procedure would introduce unwarranted additional complexity and costs for plant variety rights owners and the Plant Variety Rights Office.
Genetically-modified organisms
We received two submissions addressing Part 6 of the bill, which amends the Hazardous Substances and New Organisms Act 1996. The submitters sought amendments to parts of the Act that address genetically-modified organisms. As nothing in this bill addresses or affects the regulation of genetically-modified organisms, as any changes to the regulation of such organisms is likely to be contentious, and as the purpose of a regulatory improvement omnibus bill is to address minor regulatory problems, we believe this bill is an inappropriate means to address these issues.
Appendix
Committee process
The Regulatory Improvement Bill was referred to the committee on 12 May 2009. The closing date for submissions was 16 July 2009. We received and considered 10 submissions from interested groups and individuals. We heard three submissions.
We received advice from the Ministry of Economic Development, the Ministry of Consumer Affairs, the Department of Conservation, the Ministry for the Environment, the Ministry of Fisheries, the Ministry of Agriculture and Forestry, and the Environmental Risk Management Authority.
Commentary
Recommendation
The Commerce Committee has examined the Regulatory Improvement Bill and recommends that it be passed with the amendments shown.
Introduction
The Regulatory Improvement Bill proposes a number of small but important changes to various Acts, which are designed to improve the regulatory framework and reduce the compliance burden on businesses.
The bill would amend the Companies Act 1993, the Conservation Act 1987, the Designs Act 1953, the Fisheries Act 1996, the Gas Act 1992, the Hazardous Substances and New Organisms Act 1996, the Ministry of Agriculture and Fisheries (Restructuring) Act 1995, the Reserves Act 1977, and the Weights and Measures Act 1987.
This commentary does not cover technical, clarifying, or consequential amendments.
Commencement
We recommend an amendment to clause 2(1) of the commencement clause to make it more certain when Part 3 of the bill, which amends the Designs Act 1953, would come into force. Clause 2(1) as introduced states that Part 3 of the bill will come into force on a date to be appointed by the Governor-General by Order in Council. The reason given for this in the explanatory note is to allow time for regulations to be made to give effect to the changes introduced by the legislation.
On the principle that the public, particularly those who would be directly affected by legislation, should know when legislation comes into force, and because of the uncertainty caused by Parliament delegating commencement to the Executive, this method of commencement is considered appropriate only in rare and exceptional circumstances where it is clearly justifiable.
That the Minister is uncertain when the regulations will be ready is not in our view an adequate reason.
We therefore recommend that clause 2(1) be amended so that Part 3 of the legislation (except clause 14) would come into force on the earlier of either 12 months after the date of the Royal assent or a date to be appointed by the Governor-General by Order in Council. This should allow sufficient time for regulations to be made to give effect to the changes introduced by the legislation.
Inspection of registered designs
We recommend the insertion of new clause 12A, which inserts new section 30(5) into the Designs Act 1953. Section 30(5) gives specific authorisation for the Commissioner to publish bibliographical details of design applications. The Commissioner has released this information in the past, but confusion has arisen over whether the Act as it stands in fact permits this. As the publication of details is desirable to keep the public informed of applications being made, we believe this situation should be rectified by inserting into the Act an explicit authorisation to publish these details.
Restoration of lapsed copyright in registered design and restoration of design applications
We recommend amendments to clause 13, which inserts new sections 41A to 41F into the Designs Act 1953. Sections 41A to 41F allow the restoration of lapsed copyright in registered designs. We believe it would be similarly advantageous to allow the restoration of design applications, which would bring the Designs Act 1953 into line with the Patents Act 1953 (and the Patents Bill currently before the House) which allows both.
We therefore recommend the insertion of new sections 41G to 41J to achieve this.
Amendments to material incorporated by reference in regulations
We recommend the amendment of clause 46 and the insertion of new clause 46A. Clause 46 amends section 141A of the Hazardous Substances and New Organisms Act 1996, which relates to incorporation by reference of material into regulations and other instruments. This clause, however, differs from the Parliamentary Counsel Office’s proposed new standard clauses for incorporation by reference.
The standard clauses prepared by the Parliamentary Counsel Office give effect to principles established by the Regulations Review Committee in its inquiry into material incorporated by reference in 2004. In its 2008 report on this matter the Regulations Review Committee recommended that such clauses be included in the Legislation Advisory Committee’s guidelines, and enacted in a statute of general application so that they need not be re-enacted each time they were required. The Government agreed with both recommendations.
As we are advised that there is no reason that these clauses should deviate from the proposed standard clauses, apart from the exceptions discussed below, we recommend that this bill be amended to conform with them.
We agree that the mechanism for amendment to incorporated material by notification in the Gazette should be retained, as this method has been specifically safeguarded by an express requirement that this material be brought to the attention of the Regulations Review Committee.
We agree that the requirements for consulting on proposed amendments to material incorporated in an instrument match the consultation requirements that apply to the instrument itself. Similarly, we agree the requirements for providing access to material incorporated in an instrument other than regulations should largely match the requirements for providing access to the instrument itself. In the case of regulations, the ministry must ensure that copies of incorporated material were available for purchase, which might include the ministry advising where copies could be purchased.
Plant Variety Rights Act 1987
We considered whether the restoration provisions inserted into the Designs Act 1953 by clause 13 should also be inserted into the Plant Variety Rights Act 1987 as similar issues may arise in this area.
We consider that the current provisions of the Act work well and give the Commissioner of Plant Variety Rights discretion as to whether to cancel a plant variety right because of the non-payment of the renewal fee. We consider that the proposed procedure would introduce unwarranted additional complexity and costs for plant variety rights owners and the Plant Variety Rights Office.
Genetically-modified organisms
We received two submissions addressing Part 6 of the bill, which amends the Hazardous Substances and New Organisms Act 1996. The submitters sought amendments to parts of the Act that address genetically-modified organisms. As nothing in this bill addresses or affects the regulation of genetically-modified organisms, as any changes to the regulation of such organisms is likely to be contentious, and as the purpose of a regulatory improvement omnibus bill is to address minor regulatory problems, we believe this bill is an inappropriate means to address these issues.
Appendix
Committee process
The Regulatory Improvement Bill was referred to the committee on 12 May 2009. The closing date for submissions was 16 July 2009. We received and considered 10 submissions from interested groups and individuals. We heard three submissions.
We received advice from the Ministry of Economic Development, the Ministry of Consumer Affairs, the Department of Conservation, the Ministry for the Environment, the Ministry of Fisheries, the Ministry of Agriculture and Forestry, and the Environmental Risk Management Authority.
Committee membership
Hon Lianne Dalziel (Chairperson)
John Boscawen
Clare Curran
Te Ururoa Flavell
Raymond Huo
Melissa Lee
Peseta Sam Lotu-Iiga
Katrina Shanks
Jonathan Young