Legislation Bill

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Explanatory note

General policy statement

The purpose of this Bill is to modernise and improve the law relating to the publication, availability, reprinting, revision, and official versions of legislation and to bring this law together in a single piece of legislation. This Bill contributes towards the achievement of the Government’s key policy goals in the area of—

  • regulatory reform (by reducing the need for technical remedial legislation as a consequence of enhanced reprinting powers); and

  • innovation and business assistance (by improving access to old archaically expressed law through a programme of revision of old statutes).

Key policy decisions implemented in this Bill include the following:

  • the Parliamentary Counsel Office (the PCO) will be required to publish legislation electronically as well as in printed form:

  • the PCO will be able to issue official versions of legislation in electronic and printed form (being versions that are presumed to be correct):

  • the PCO's reprinting powers will be enhanced to enable the PCO to correct obvious errors and (if authorised by Order in Council for the purpose) to renumber older legislation:

  • a 3-yearly programme of systematic revision of Acts is established:

  • legislation providing for the disallowance of subordinate legislation is modernised and existing Acts are consequentially amended to specify whether particular subordinate legislation is disallowable:

  • enabling powers and related processes are provided to enable certain kinds of subordinate legislation to incorporate material by reference:

  • outdated aspects of the Statutes Drafting and Compilation Act 1920, particularly those relating to the appointment of counsel and the organisational structure of the PCO, are replaced by modern legislation that continues the PCO as a separate statutory office.

This Bill implements the majority of the legislative recommendations made in the Law Commission reports—

  • Presentation of New Zealand Statute Law, October 2008 (NZLC R104):

  • Review of the Statutes Drafting and Compilation Act 1920, May 2009 (NZLC R107).

NZLC R104 was prepared in conjunction with the PCO and NZLC R107 in consultation with the PCO.

NZLC R104 is primarily concerned with how to present our Acts of Parliament so people can find the law and how to ensure the law is up to date. At the heart of this report is a basic obligation of the State, expressed by the Law Commission as follows:

  • The state has an obligation to make law accessible to citizens. People have to obey the law; ignorance of it is no excuse. So they need to be able to find it and understand it. They will not respect the law if they cannot. Moreover, law which is not accessible is expensive in terms of both time and money.1

As recommended by NZLC R104, this Bill replaces the Statutes Drafting and Compilation Act 1920, the Acts and Regulations Publication Act 1989, and the Regulations (Disallowance) Act 1989. In NZLC R104, the Law Commission also recommended that any new Bill to replace those Acts should also include the content of the Interpretation Act 1999, but the Government does not support carrying over the Interpretation Act 1999 in its current form without first conducting a policy review of its content in consultation with the Judiciary, the legal profession, and other interested persons or organisations. The legislative recommendations in NZLC R104 that are implemented by this Bill are in Parts 2 and 3 of the Bill.

The main legislative recommendations in NZLC R104 are set out in the following list together with an indication of whether an item is included in this Bill (. indicates that an item is included in the Bill and × indicates that an item is not included):

  • continuation of the obligation to produce printed copies of legislation (. to be provided for by Order in Council):

  • making existing Acts available free of charge on the New Zealand Legislation website (. ) and adding historical Acts to that collection in the near future:

  • enhanced powers to correct errors and make other editorial changes when reprinting legislation (. ):

  • a 3-yearly programme of revision of Acts (. ):

  • powers to alter the wording, order, and placement of the provisions being revised (. ):

  • establishment of a certification committee to vet revision Bills (. ):

  • a streamlined Parliamentary procedure for passing revision Bills (×):

  • combining the Acts and Regulations Publication Act 1989 (. ), Interpretation Act 1999 (×), Regulations (Disallowance) Act 1989 (. ), and the Statutes Drafting and Compilation Act 1920 (. ).

NZLC R107 reviews the status, functions, responsibilities, and powers of the PCO and reviews the Statutes Drafting and Compilation Act 1920. The legislative recommendations in NZLC R107 that are implemented by this Bill are in Part 4 of this Bill.

The main legislative recommendations in NZLC R107 are set out in the following list together with an indication of whether an item is included in this Bill (. indicates that an item is included in the Bill and × indicates that an item is not included):

  • the PCO continues as a separate statutory office (under the same name but not to be described as an office of Parliament), outside the core Public Service, under the control of the Attorney-General (. ):

  • the Chief Parliamentary Counsel to be appointed for a fixed term by the Governor-General, but other counsel to be subject to the Employment Relations Act 2000 (. ):

  • existing counsel continue on terms no less favourable than previously (. ):

  • the functions of the PCO be listed in the legislation (. ), including the function of providing free and frank advice (×):

  • the legislation state that one of its purposes is to facilitate legislation of high quality (. ):

  • the legislation should include power for the Chief Parliamentary Counsel to delegate his or her functions and powers (. ):

  • the PCO should no longer be divided into 2 departments (. ).

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that clauses 9 and 22 will be brought into force by Order in Council (with a default date of 1 July 2013 if not brought into force by order before that date) and that the rest of the Bill will come into force on 1 July 2011. It is necessary to defer the commencement of clauses 9 and 22 until the process of officialising the legislation database is completed and any necessary regulations are developed for this purpose under clause 22.

Part 1
General provisions

Clause 3 lists the purposes of the Bill.

Clause 4 defines terms used in the Bill. The key new defined terms are—

  • disallowable instrument, which has the meaning given in clause 37. This term is used primarily in subpart 1 of Part 3 but is also used elsewhere in the Bill. The definition is intended to capture instruments that are legislative orders, are expressly stated by an Act to be disallowable instruments, or have a significant legislative effect (within the meaning of clause 38). Where an existing Act applies the Regulations (Disallowance) Act 1989 to a particular kind of legislative instrument, it is intended that the Schedule of this Bill will update that provision by stating that legislative instruments of that kind are disallowable instruments under subpart 1 of Part 3 of this Bill. So, the definition will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance:

  • legislative order is a new term and is used primarily for the purpose of Part 2 of the Bill. The definition is intended to capture most Orders in Council and ministerial instruments (such as Gazette notices) that amend an Act or define a term used in an Act. Under Part 2, the PCO will publish legislative orders, reprints of legislative orders and regulations, and some class exemption notices under various Acts, but will not have to publish other subordinate legislative instruments. The term regulations is already defined in the Interpretation Act 1999 and that definition will usually apply where an enactment uses that term.

Clause 5 provides that the Bill binds the Crown.

Part 2
Law relating to publishing, reprinting, and revising legislation

Subpart 1Publishing legislation

Background

At present, the only official versions of New Zealand legislation are those published in paper form under the authority of the Government. These versions take the form of pamphlet copies and annual bound volumes. The New Zealand Legislation website went live at the beginning of 2008 and provides free electronic access to copies of Acts and regulations. Work is under way in the PCO to check the database and ensure it is up to date so that its legislative content can be officialised—made as authoritative as official hard copies—after the Bill is passed.

Responsibilities and requirements

Clause 6 changes the existing obligation under section 4 of the Acts and Regulations Publication Act 1989 by requiring the Chief Parliamentary Counsel to make arrangements for the publication of electronic versions of legislation and by providing for the publication of printed versions to be authorised or required by Order in Council. In its response to NZLC R104, the Government has agreed to continue publishing legislation in printed form until the legislation database is officialised and then to review the situation. The PCO will continue to publish Acts, reprints of Acts, and reprints of regulations, as required or authorised by this clause. However, the PCO will not continue to publish all new regulations. Instead, the PCO will publish legislative orders (which will include most regulations but exclude individual exemption notices and similar instruments). The clause also imposes an obligation to ensure that publication is done in a timely fashion.

Availability

Clause 7 requires the Attorney-General to specify where copies of legislation can be purchased and replaces section 9 of the Acts and Regulations Publication Act 1989. A list of retail outlets that stock New Zealand legislation is available on the PCO Internet site.

Clause 8 requires the Chief Parliamentary Counsel to ensure that printed copies of legislation that are published under clause 6 are available for purchase by the public at a reasonable price and replaces section 10 of the Acts and Regulations Publication Act 1989. The clause also provides that the price of copies can be determined having regard to the cost of printing and sale.

Clause 9 requires the Chief Parliamentary Counsel to ensure that official versions of legislation in electronic form are available to the public free of charge. Regulation-making powers are included in clause 22 for the purpose of specifying the manner in which these versions are to be made available electronically.

Forwarding to Chief Parliamentary Counsel

Clause 10 requires that copies of legislative orders be forwarded to the Chief Parliamentary Counsel without delay after the orders are made. This clause replaces section 5 of the Acts and Regulations Publication Act 1989.

Numbering and notification

Clause 11 requires that legislative orders published by the PCO be numbered and replaces section 11 of the Acts and Regulations Publication Act 1989.

Clause 12 requires the Chief Parliamentary Counsel to notify the making of legislative orders by placing a notice in the Gazette and replaces section 12 of the Acts and Regulations Publication Act 1989.

Clause 13 provides that the publication in the Gazette of a notice of the making of an instrument (the notice given under clause 12) satisfies any statutory requirement to publish or notify the instrument in the Gazette. This clause replaces section 13 of the Acts and Regulations Publication Act 1989.

Other instruments

Clause 14 allows the Attorney-General or the Chief Parliamentary Counsel to publish an instrument that does not have to be published because it is not a legislative order. This clause replaces section 14 of the Acts and Regulations Publication Act 1989. An example of an instrument published under section 14 is the Telecommunications (Operational Separation) Determination 2007 (SR 2007/302). The kind of instrument that could be published in reliance on this provision includes, for example, instruments that are legislative in character or affect a wide cross section of the public.

Revocation of spent instruments

Clause 15 empowers the making of Orders in Council that revoke spent subordinate legislation and replaces section 16 of the Acts and Regulations Publication Act 1989. The Attorney-General must be satisfied that the instrument has ceased to have effect or is no longer required. An example of an order made under section 16 is the Regulations Revocation Order 2008 (SR 2008/367).

Judicial notice of legislation

Clause 16 requires that judicial notice be taken of Acts, regulations, and legislative orders. This clause replaces sections 16A and 16B of the Acts and Regulations Publication Act 1989. Sections 16A and 16B had, in turn, replaced sections 28 and 28A of the Evidence Act 1908. The purpose of these provisions is to ensure that the courts recognise an official copy of legislation for what it purports to be without requiring supporting evidence to prove its existence.

Official versions of legislation

Clause 17 enables the Chief Parliamentary Counsel to produce official versions of legislation in electronic form and printed form. This power is subject to any regulations made under clause 22.

Clause 18 states the legal effect of making a version an official version. In the absence of evidence to the contrary, it is presumed that—

  • the version correctly states the law:

  • changes made in a reprint are authorised:

  • an instrument was notified in the Gazette on the date indicated by the instrument.

Evidence of parliamentary journals

Clause 19 provides that parliamentary journals must be accepted in evidence in judicial proceedings and do not have to be proved. This clause replaces section 16E of the Acts and Regulations Publication Act 1989.

Form of copies and reprints of legislation

Clause 20 enables the Attorney-General to give directions about the form in which legislation must be published and replaces section 7 of the Acts and Regulations Publication Act 1989.

Clause 21 requires that legislative orders must refer to the empowering enactment, the date on which they were made, and the commencement date (if any). This clause replaces section 8 of the Acts and Regulations Publication Act 1989.

Regulations

Clause 22 contains regulation-making powers for the purposes of subpart 1 of Part 2. The regulations may—

  • set out requirements or conditions in respect of the manner in which official versions of legislation in electronic form are to be made available to the public under clause 9:

  • specify how an electronic or paper document is identifiable as an official version:

  • provide for incidental matters.

Subpart 2Reprints

Clause 23 defines certain terms used in this subpart and replaces definitions in section 17A of the Acts and Regulations Publication Act 1989.

Clause 24 provides that reprints may make the changes to legislation that are listed in clauses 25 (editorial changes) and 26 (changes to format). This authority is subject to the important limitation in subclause (2) (carried over from section 17C of the Acts and Regulations Publication Act 1989) that changes cannot change the effect of the legislation being reprinted. This clause also ensures that reprints can continue to update old references to repealed enactments under the authority of section 22 of the Interpretation Act 1999.

Clause 25 sets out the kind of editorial changes that can be made in a reprint. This clause closely follows recommendations in NZLC R104 and will bring New Zealand reprinting powers into line with those available in comparable Commonwealth jurisdictions. Key changes authorised by this clause include—

  • renumbering of legislation (for example, renumbering older legislation that has alphanumeric section numbers such as 106ZZK) as a result of insertions and substitutions:

  • updating the titles of offices or names of bodies that have changed:

  • typographical, clerical, and numbering errors may be corrected:

  • provisions in amending enactments that provide for savings or transitional matters, or contain validations, may be incorporated in a reprint of the principal legislation.

Clause 26 authorises reprints to change the format of legislation being reprinted and replaces section 17D of the Acts and Regulations Publication Act 1989.

Clause 27 requires that a reprint that makes changes authorised by this subpart must include a note of the changes. This clause replaces section 17F of the Acts and Regulations Publication Act 1989.

Subpart 3Revision Bills

This subpart implements most of the revision recommendations in NZLC R104 other than the recommended special procedure for passing revision Bills.

Preliminary provisions

Clause 28 defines terms used in this subpart.

Clause 29 gives an overview of the revision process under this subpart. A revision Bill is one that substantially re-enacts earlier law and is in a form that makes the earlier law more accessible. Unlike a reprint, a revision Bill will redraft the earlier law so that it is rationalised and arranged more logically, inconsistencies and overlaps are removed, obsolete and redundant provisions are repealed, and expression, style, and format are modernised and made consistent.

Preparation of revisions

Clause 30 requires the Attorney-General to prepare a rolling 3-year revision programme for each Parliament. In NZLC R104, the Law Commission recommends that the Chief Parliamentary Counsel be responsible for developing a revision programme. This clause places the responsibility with the Attorney-General and enables the revision programme to be developed in the same way as the Law Commission's work programme.

Clause 31 sets out the powers available to the PCO in the preparation of revisions. In addition to the changes that could be made in a reprint, this clause enables a revision to (among other things)—

  • revise, combine, or divide Acts:

  • adopt a new Title:

  • include new provisions (such as purpose and overview provisions) to aid accessibility and readability:

  • clarify the intent of the legislation:

  • update specified monetary amounts, having regard to movements in the Consumers Price Index:

  • make consequential amendments to other legislation affected by the revision.

Clause 32 relates to the format of a revision. A revision will have to be in the form of a Bill suitable for introduction into the House of Representatives and contain explanatory material describing the inconsistencies, anomalies, discrepancies, and omissions remedied by the Bill.

Clause 33 sets out a procedure for certifying a revision. The certifiers are the President of the Law Commission, the Solicitor-General, a retired Judge of the High Court nominated by the Attorney-General, and the Chief Parliamentary Counsel. The purpose of this procedure is to ensure that the revision powers have been exercised appropriately.

Interpretation of revision Acts

Clause 34 relates to the interpretation of revision Acts. The usual presumption will be that a revision Act is not intended to alter the spirit and meaning of the law. However, the usual presumption is displaced by any intentional change that is made under the limited powers to alter the law.

Review of this subpart

Clause 35 provides for a review of subpart 3 after it has been in operation for 6 years.

Part 3
Subordinate legislation: disallowable instruments and incorporation of material by reference

Subpart 1Disallowable instruments

Interpretation

Clause 36 defines certain terms used in this subpart. In particular, the terms obligations and rights are defined for the purposes of applying the provisions in clauses 37 to 39. Those provisions determine whether an instrument is a disallowable instrument, in the absence of a statement made for that purpose in another Act.

Clause 37 defines disallowable instrument. In general, an instrument will be disallowable under this subpart if it—

  • is a legislative order; or

  • is disallowable because of the operation of another enactment (for example, an Act may specifically state that an instrument is a disallowable instrument); or

  • has significant legislative effect as defined in clause 38.

Existing Acts that refer to the Regulations (Disallowance) Act 1989 are consequentially amended in the manner indicated by the Schedule so that they state whether or not an instrument is disallowable. So, the test in clause 38 will apply where an Act enables subordinate legislation to be made but is silent on the question of disallowance.

Clause 38 defines significant legislative effect. To qualify under this definition, the effect of the instrument must be—

  • to create, alter, or remove rights or obligations or to determine or alter the temporal application of rights or obligations; and

  • to determine or alter the content or temporal application of the law applying to the public or a class of the public.

Clause 39 gives some examples of how the temporal application of rights or obligations can be altered or determined. An example is an instrument that appoints a date on which specified statutory rights or obligations come into force.

Presentation to House of Representatives

Clause 40 requires that legislative orders and those instruments that are stated by an Act to be disallowable instruments be presented to the House of Representatives not later than the 16th sitting day after they are made. This clause replaces section 4 of the Regulations (Disallowance) Act 1989. Arrangements are in place to ensure that this happens for instruments published by the PCO.

How instruments are disallowed

Clause 41 provides for actual disallowance by a resolution of the House of Representatives. A member of the House would start this process by giving notice of motion to disallow a regulation. This clause replaces section 5 of the Regulations (Disallowance) Act 1989.

Clause 42 provides for automatic disallowance of an instrument where certain things do not happen within 21 sitting days after a notice of motion to disallow the instrument has been given. This process is activated if, at the end of that period,—

  • the motion has not been withdrawn; or

  • the motion has not been disposed of in some way by the House; or

  • Parliament has not been dissolved and has not expired.

This clause replaces section 6 of the Regulations (Disallowance) Act 1989.

Effect of disallowance

Clause 43 provides that an actual disallowance or automatic disallowance of an instrument under this subpart has the same effect as a revocation. It follows that—

  • the earlier instrument is not revived:

  • a new instrument can be made in the usual way.

This clause replaces section 7 of the Regulations (Disallowance) Act 1989.

Clause 44 applies where the instrument being disallowed amended an Act or other instrument or repealed an Act or revoked an instrument. In such a case, the earlier enactment is restored or revived. This clause replaces section 8 of the Regulations (Disallowance) Act 1989.

Amendment or substitution of instruments by House of Representatives

Clause 45 empowers the House of Representatives to amend a disallowable instrument or replace the instrument. This power was exercised for the first time in 2008 to amend the Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand (see SR 2008/362). This clause replaces section 9 of the Regulations (Disallowance) Act 1989.

Notification of disallowance, amendment, or substitution

Clause 46 requires any actual or automatic disallowance of a disallowable instrument and any amendment or replacement of an instrument under this subpart to be notified by the Clerk of the House of Representatives. The notice is published by the PCO (see the explanation of clause 45 above for the only notice published under the current section). This clause replaces section 10 of the Regulations (Disallowance) Act 1989.

Subpart 2Incorporation by reference in instruments

This subpart is not related to NZLC R104 or NZLC R107, and contains provisions recommended by the Regulations Review Committee. In July 2004, the Committee presented its report Inquiry into material incorporated by reference (I.16G). Among other things, the report recommended that standard provisions devised by the Legislation Advisory Committee be used whenever a Bill is enabling regulations to incorporate material by reference. Legislative practice was changed to implement this approach and now numerous Acts contain these standard provisions or variations of them. By way of example, sections 405 to 413 of the Building Act 2004 provide for regulations and compliance documents to incorporate material in this way rather than providing for the material to be published in full in each instrument. In September 2008, the Regulations Review Committee presented its report Further inquiry into material incorporated by reference (I.16O), in which it recommended that the standard provisions be enacted in a statute of general application so that they need not be re-enacted each time they are required.

This subpart contains an enabling power together with procedural requirements that will apply whenever the enabling power is relied on to incorporate material by reference in subordinate legislation such as a regulation. The benefits include—

  • a clear and consistent standard procedure for incorporating material by reference:

  • not cluttering up the statute book with provisions for incorporation by reference:

  • saving time and effort when drafting Bills by removing the need for provisions about incorporation by reference to be repeated in each individual Act.

Appendix 4 of the Legislation Advisory Committee's Guidelines on process and content of legislation sets out principles for incorporation by reference. This Appendix can be viewed at: http://www.justice.govt.nz/lac/pubs/2001/legislative_guide_2000/appendix_4.html.

Clause 47 defines certain terms used in this subpart. In particular, this clause defines—

  • incorporation by reference to include partial incorporation of material and updating incorporated material to take in amendments made by the originating authority:

  • instrument to mean any instrument (other than a bylaw under the Bylaws Act 1910) that has legislative effect and is authorised by an enactment.

Clause 48 empowers subordinate legislation to incorporate material by reference and is based on section 22 of the Standards Act 1988. The intention is that, if an Act empowers the making of an instrument (such as regulations or other subordinate legislation) for the purposes of defining terms, prescribing matters, or making other provision in relation to activities or things, then the instrument will be able to incorporate material by reference in reliance on this clause. However, when this new enabling power is relied on, clauses 50 to 56 will apply and impose specified procedural requirements.

The following material can be incorporated by reference in reliance on this clause:

  • a standard, framework, code of practice, recommended practice, or requirement of an international or a national organisation:

  • a standard, framework, code of practice, recommended practice, or requirement prescribed in any country or jurisdiction:

  • other technical material that is too large to publish in the instrument.

Clause 49 relates to the application of this subpart. The rest of the subpart applies if clause 48 is relied on to incorporate material by reference. In particular, the consultation requirements in clause 50 and the accessibility requirements in clause 51 have to be complied with.

Clause 50 sets out the consultation requirements that apply before an instrument incorporating material by reference or amending or replacing such material is made wholly or partly in reliance on clause 48. The minimum requirements are—

  • copies of the proposed material must be available for inspection during working hours for a reasonable period, free of charge, at the inspection sites:

  • copies must be available for purchase:

  • copies of the proposed material must be made available, free of charge, on an Internet site maintained by or on behalf of the administering department, unless doing so would infringe copyright:

  • notice about access to the proposed material must be given in the Gazette:

  • a reasonable opportunity must be allowed for persons to comment on the proposal to incorporate material by reference:

  • any comments must be considered.

Clause 51 specifies how the responsible chief executive is to provide access to material incorporated by reference in an instrument in reliance on clause 48. The requirements are—

  • the incorporated material must be available for inspection during working hours free of charge at the inspection sites:

  • copies of the incorporated material must be available for purchase:

  • copies of the incorporated material must be made available, free of charge, on an Internet site maintained by or on behalf of the administering department, unless doing so would infringe copyright:

  • notice about access to the incorporated material must be given in the Gazette.

Clause 52 relates to the status of amendments to material that has been incorporated by reference in an instrument. If the originating organisation amends or replaces material that has been incorporated by reference in an instrument, the amendments or new material will have effect only if specifically applied by another instrument.

Clause 53 specifies how material incorporated by reference in regulations can be proved in court proceedings. The responsible chief executive can do this by producing a certified copy of the material.

Clause 54 relates to the application of subpart 1 of Part 2 of this Bill to an instrument and the material it incorporates by reference. Under this clause, the instrument will have to be published by the PCO only if it is a legislative order. Even if the instrument is drafted and published by the PCO, the material incorporated by reference does not have to be drafted and published by the PCO and does not have to be presented to the House of Representatives.

Clause 55 provides that an instrument that incorporates material by reference is disallowable.

Clause 56 provides that these provisions do not affect sections 22 to 25 of the Standards Act 1988. Sections 22 to 25 provide for the incorporation of New Zealand standards in regulations or bylaws, the citation of standards, the effect of references to standards, and how to prove whether a standard is a New Zealand standard.2

Part 4
Parliamentary Counsel Office

This Part largely implements NZLC R107.

Constitution and functions

Clause 57 continues the PCO as an instrument of the Crown and a separate statutory office under the control of the Attorney-General. Legislation that currently applies to the PCO, such as the Ombudsmen Act 1975, the State Sector Act 1988, the Public Finance Act 1989, and the Public Audit Act 2001, will continue to apply. However, the PCO will cease to be styled as an office of Parliament.

Clause 58 states the functions of the PCO, re-enacts the existing functions under the 1920 Act, and adds new functions. The changes are—

  • a recognition of the electronic publication of legislation:

  • the rolling 3-year revision programme:

  • reprinting will be carried out under greatly enhanced reprinting powers:

  • parliamentary counsel will advise departments and agencies about the drafting of tertiary legislation:

  • a provision based on section 9A of the Legislative Standards Act 1992 (Queensland) is added to ensure that drafting instructions received by the PCO, communications between any client of the PCO and any counsel in the PCO that relate to the subject matter of the instructions, and draft legislation prepared by the PCO are subject to legal professional privilege.

This clause also re-enacts section 8A of the 1920 Act. Section 8A of that Act enables the making of an Order in Council authorising the Inland Revenue Department to draft tax Bills. See the Inland Revenue Department (Drafting) Order 1995 (SR 1995/286).

Powers of Chief Parliamentary Counsel

Clause 59 gives the Chief Parliamentary Counsel the standard powers of a chief executive of a department under the State Sector Act 1988.

Clause 60 provides for delegations from the Chief Parliamentary Counsel and is based on section 12 of the Clerk of the House of Representatives Act 1988.

Clause 61 provides for a person to be authorised to act in place of the Chief Parliamentary Counsel during the latter's absence or incapacity. A standing delegation is required to be arranged for this purpose under clause 60.

Clause 62 provides for the revocation of delegations from the Chief Parliamentary Counsel and is based on section 13 of the Clerk of the House of Representatives Act 1988.

Chief Parliamentary Counsel and employees of PCO

Clause 63 relates to the office of Chief Parliamentary Counsel and provides that appointment to the office will continue to be made by the Governor-General on the recommendation of the Prime Minister. However, new appointments to the office will be for a specified period up to 7 years rather than at pleasure, and reappointments will be possible. This clause is based on sections 10 and 11 of the Clerk of the House of Representatives Act 1988 and sections 32 and 33 of the State Sector Act 1988, with an additional requirement that the appointee hold a legal qualification granted in a common law jurisdiction.

Clause 64 provides for the appointment of parliamentary counsel. A person appointed as such must hold a legal qualification granted in a common law jurisdiction and will be an employee for the purposes of the Employment Relations Act 2000. Other enactments that apply that Act in a similar way are section 25 of the Clerk of the House of Representatives Act 1988 and section 56 of the Policing Act 2008.

Clause 65 provides for the appointment of PCO staff other than parliamentary counsel.

Clause 66 relates to the remuneration and conditions of appointment of the Chief Parliamentary Counsel and re-enacts the existing arrangements under section 6A of the 1920 Act. Section 6A of that Act provides for the Remuneration Authority to fix the remuneration of the Chief Parliamentary Counsel.

Clause 67 provides that the Chief Parliamentary Counsel has all the rights, duties, and powers of an employer in respect of the parliamentary counsel and other employees for whom the Chief Parliamentary Counsel is responsible.

Clause 68 requires any collective agreement for PCO staff to be negotiated under the Employment Relations Act 2000.

Clause 69 requires the Chief Parliamentary Counsel to operate a personnel policy that complies with the principle of being a good employer.

Clause 70 provides that appointments made by the Chief Parliamentary Counsel under clause 64 or 65 must be on merit.

Clause 71 requires the Chief Parliamentary Counsel to put in place a procedure for—

  • notifying vacancies in the PCO:

  • notifying staff of appointments made to vacant positions:

  • reviewing appointments.

Repeals, consequential amendments, and savings

Clause 72 repeals the 1920 Act, the Acts and Regulations Publication Act 1989, and the Regulations (Disallowance) Act 1989. The clause also amends the definition of regulations in section 29 of the Interpretation Act 1999 in order to replace references to the Acts and Regulations Publication Act 1989 and the Regulations (Disallowance) Act 1989.

This clause also provides that—

  • the repeal of the 1920 Act does not affect the application of section 59 of the Copyright Act 1994 to the PCO. Section 59 provides that copyright is not infringed by anything done for the purposes of parliamentary proceedings. With the repeal of the 1920 Act, the PCO will no longer be described as an office of Parliament and the loss of that status potentially raises an issue about the continued application of section 59 to the PCO:

  • any notice given under section 9 of the Acts and Regulations Publication Act 1989 for the purpose of designating places where copies of legislation can be purchased will continue in force:

  • sections 16C and 16D of the Acts and Regulations Publication Act 1989 will continue in force to preserve the evidential value of printed copies of legislation until official versions under Part 2 of this Bill are available.

Clause 73 contains savings provisions about various office holders under the 1920 Act. The office of Compiler of Statutes is abolished and its functions will be assumed by the Chief Parliamentary Counsel. Existing parliamentary counsel will become employees in terms of the Employment Relations Act 2000 on terms and conditions no less favourable than those enjoyed by them previously. As a result, they, in effect, become permanent employees rather than serve at the Governor-General's pleasure.

The Schedule sets out consequential amendments to various Acts to replace existing references to the Acts and Regulations Publication Act 1989 and the Regulations (Disallowance) Act 1989 and to reflect the new provisions in Part 2 of this Bill that determine whether or not a piece of subordinate legislation will be published by the PCO. The main change is that the PCO will not publish individual exemption notices under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, the Financial Advisers Act 2008, the Financial Reporting Act 1993, the Reserve Bank of New Zealand Act 1989, the Securities Act 1978, the Securities Markets Act 1988, or the Takeovers Act 1993. However, the PCO will continue to publish class exemptions under any of those Acts.

Individual exemptions will be published on the responsible agency’s Internet site and an agency will be free to publish the exemption in full in the Gazette in order to obtain the benefit of section 141(2) of the Evidence Act 2006 (a provision that obviates the need to prove the document in court proceedings unless the Judge decides otherwise).

Table of key provisions

The following table shows where to find key provisions in the Bill.

Chief Parliamentary Counsel, cls 63, 73 Parliamentary counsel, cls 64, 73
Disallowance of subordinate legislation, cls 36–46 Parliamentary Counsel Office, cls 57, 58
Drafting of legislation, cl 58 Printed versions of legislation, cls 6–8, 17, 18
Electronic versions of legislation, cls 9, 17, 18, 22 Reprinting of legislation, cls 23–27
Incorporation by reference in subordinate legislation, cls 47–56 Revision Bills, cls 28–35
Official versions of legislation, cls 17, 18, 22 Staff of Parliamentary Counsel Office, cls 64–71, 73

Regulatory impact statement

In accordance with Cabinet Office Circular CO (09) 08, this explanatory note does not contain a regulatory impact statement for this Bill. A copy of the regulatory impact statement for this Bill is available at the following Internet sites:


  • 1  NZLC R104, paragraph 2 on page 3.

  • 2  The Standards and Accreditation Bill is intended to replace the 1988 Act.