Legislation Bill

  • enacted

Commentary

Recommendation

The Regulations Review Committee has examined the Legislation Bill and recommends that it be passed with the amendments shown.

Introduction

The Legislation Bill is intended to modernise and improve the law regarding the publication, availability, reprinting, revision, and official versions of legislation, and bring it together into one piece of legislation.

The bill forms part of the Government’s response to recommendations made in two reports by the Law Commission,1 and also responds to recommendations made by previous Regulations Review Committees on inquiries relating to incorporating material by reference and the principles to be followed in determining whether delegated legislation is given the status of regulations.

It would replace the Statutes Drafting and Compilation Act 1920, the Acts and Regulations Publication Act 1989, and the Regulations (Disallowance) Act 1989, and allow for the following key changes:

  • the establishment of a three-yearly programme of systematic revision of Acts

  • the modernisation of legislation providing for the disallowance of subordinate legislation, and the amendment of existing Acts to specify whether particular subordinate legislation is disallowable

  • the provision of enabling powers and related processes to allow certain kinds of subordinate legislation to incorporate material by reference

  • the updating of aspects of the Statutes Drafting and Compilation Act 1920, and particularly those that relate to the appointment of counsel and the organisational structure of the Parliamentary Counsel Office and its continuation as a separate statutory office.

The bill would also alter the roles and functions of the Chief Parliamentary Counsel in the following ways:

  • The Chief Parliamentary Counsel would be required to publish legislation in electronic as well as printed form.

  • The Chief Parliamentary Counsel would be able to issue official versions of legislation in electronic and printed form.

  • The Chief Parliamentary Counsel’s reprinting powers would be enhanced to allow him or her, if authorised by Order in Council to do so, to renumber and make consequential renumbering amendments to legislation, but not in such a way as to change the effect of provisions.

This commentary discusses the more significant amendments we propose to the bill, and does not describe minor and technical drafting amendments. It comments on recommendations thematically, rather than in the order of the clauses in the bill.

Revision bills

We recommend the insertion of new clause 33A in relation to minor policy changes to revision bills. We consider that the bill as introduced might cause confusion about the relationship between changes properly made using the revision powers of the Chief Parliamentary Counsel in clause 31, and the changes made by Members of Parliament during the passage of a revision bill through the House. This is because clause 34(3) would allow a revision Act to change the effect of a law if it expressly provided for this, whereas clause 31(3) would prohibit a revision bill from changing the effect of the law, other than in the very minor and constrained ways permitted under clause 31(2)(i) or (j). We consider the bill should make the distinction clearer, by providing that a revision bill may not contain any proposed changes to the law unless authorised by clause 31, but that this does not affect the powers of the House to introduce such changes if it wishes to do so after introduction.

We also contemplated recommending a process for passing revision bills in our consideration of Part 2 of the bill. However, because we consider that this issue is a matter for the House to determine by way of Standing Orders, we are of the view that the Standing Orders Committee is the most appropriate committee to consider and make recommendations in this area. Nonetheless, we support the proposed process for the passing of these bills as laid out in the Law Commission’s October 2008 report Presentation of New Zealand Statute Law, which would see a special select committee established for the purpose of considering such bills. We encourage the Standing Orders Committee to consider the procedure laid out in the Commission’s report in its current review of the Standing Orders.

Functions of the Parliamentary Counsel Office

We recommend the redrafting of clause 58 into three separate clauses for clarity: new clauses 58, 58A, and 58B. New clause 58 sets out the functions of the Parliamentary Counsel Office, new clause 58A sets out the Inland Revenue Department’s powers to draft and supervise the printing of certain Government bills, and new clause 58B sets out the limits of confidentiality of communications between the Parliamentary Counsel Office and its clients.

We also recommend that subclause (1)(h) of new clause 58 refer expressly to the rights of the public. We are aware of some concern that the clause as introduced might limit the ability of the Parliamentary Counsel Office to report on the way local, private, or members’ bills would affect the rights of the public. We consider an amendment necessary to make it clear that the clause is not intended to limit this ability.

We also recommend an amendment to incorporate an inclusive definition of client. In the bill as introduced, subclause (6) of clause 58 refers to clients of the Parliamentary Counsel Office, but does not define this term. We consider that supplying a definition would be helpful to prevent any confusion or ambiguity arising from use of the term. We recommend including this definition in new clause 58B.

Appointment and functions of the Chief Parliamentary Counsel

We recommend amendments to clauses 60 and 61, and various amendments to clause 63, to improve the clarity of the bill and its policy intentions regarding the appointment and functions of the Chief Parliamentary Counsel.

We recommend that clauses 60 and 61 be amended to provide for delegation during a period when the office of Chief Parliamentary Counsel is vacant. The bill as introduced does not make adequate provision for such situations, and we therefore consider that providing for delegation is the appropriate way to rectify this omission.

We also recommend an amendment to clause 63(3)(a) and the insertion of new clause 64A so that the bill makes it very clear that the Chief Parliamentary Counsel should be qualified to practice as a lawyer in New Zealand or a similar jurisdiction. We recommend that new clause 64A state that, unless the Attorney-General is satisfied that an applicant has an equivalent qualification sufficient for the position, the Chief Parliamentary Counsel must be a lawyer within the meaning of section 6 of the Lawyers and Conveyancers Act 2006 or a person who is eligible to practice law in a country named in an Order in Council. We consider that this would provide for the necessary qualification requirements for the person holding office as the Chief Parliamentary Counsel.

Further, we recommend an amendment to clause 63(4) regarding the removal or suspension of the Chief Parliamentary Counsel by the Governor-General, inserting the words proved to the satisfaction of the Governor-General after the words or misconduct. We believe that this clause should state the standard of proof required before the Governor-General can remove the Chief Parliamentary Counsel; and we consider that this wording would impose sufficient duty on the Minister advising the Governor-General in situations where removal or suspension was under consideration.

We also recommend that subclause (5) of clause 63 be deleted. It provides for the State Services Commissioner to be responsible for managing the appointment of the Chief Parliamentary Counsel and providing advice to the Prime Minister on nominations for this role. This provision reflects current practice, as the State Services Commission managed the recruitment process for the position in 1996 and 2007. However, we believe that there would be more flexibility in these processes if this subclause were deleted. We note that removing the provision would not preclude the Government from seeking assistance from the State Services Commission if it so desired, or employing another process entirely for recruitment to the position.

We also recommend one further change to clause 63 to make it clear that the Chief Parliamentary Counsel would be permitted to resign during his or her term of office.

Finally, we recommend amending clause 66 to provide for the terms and conditions of appointment of the Chief Parliamentary Counsel (other than remuneration and allowances) to be determined by the Attorney-General. The bill as introduced does not currently make provision for the relevant terms and conditions for this role, but comparable provisions exist for similar roles. For example, the Speaker is explicitly required to determine these conditions for the Clerk of the House under the Clerk of the House of Representatives Act 1988. As the Chief Parliamentary Counsel is responsible to the Attorney-General, we consider the Attorney-General to be the most appropriate person to determine his or her terms and conditions.

Appointment of parliamentary counsel

We recommend amending clause 64 and applying the provisions of new clause 64A to parliamentary counsel, so that they would be subject to similar eligibility requirements to those we recommend for the Chief Parliamentary Counsel in respect of clause 63(3)(a). We propose these amendments to make it clear that parliamentary counsel should be lawyers who are qualified to practice in New Zealand or a similar jurisdiction, whilst also leaving sufficient flexibility to allow the Chief Parliamentary Counsel to set aside the qualification requirements if necessary.

Liability

We recommend the insertion of new clause 71A to make it clear that the Chief Parliamentary Counsel and employees of the Parliamentary Counsel Office are protected from liability resulting from their work for the Office. We are concerned that there might be some ambiguity in this regard in the bill as introduced, and consider the insertion of such a provision is warranted to ensure certainty on this issue.

Reprints of legislation

We recommend amending clause 24(2) to make it clear that clauses 25 and 26, which set out the Chief Parliamentary Counsel’s powers to make changes in reprints, would not permit any change to the text of a provision of any legislation that, if enacted, would change the effect of the provision. We are aware of some concern that the reprinting powers in the bill could be unintentionally or inadvertently used to change the effect of a provision, and believe that that this amendment would clarify the policy intention of the subpart and ensure that the distinction between reprinting and re-enacting the law is clear. We are also satisfied that there are sufficient restrictions in clause 24(2) to ensure that changes could not be made in a reprint that would change the effect of a provision.

Interpretation

We recommend amending clause 4 to replace the term legislative order with legislative instrument, for the sake of accuracy, as a legislative order may sometimes be an instrument other than an Order in Council. For consistency, we propose that this term be used throughout the bill in place of legislative order.

Publication of legislation in hard copy

We considered recommending an amendment to ensure it is clear that there is provision for all legislation to be printed in hard copy, as we were aware of concern that the passing of the bill into law might result in legislation being published in electronic form only. However, we are assured that the purpose of the power in clause 6(4) of the bill to make an Order in Council that authorises the Chief Parliamentary Counsel to print legislation in hard copy is not to undermine the value of hard copy versions, but rather to allow flexibility should a Government at some time in the future decide that legislation could be made properly accessible by electronic publication only.

Disallowance of subordinate legislation

We are aware of concern that clauses 37 and 38 would narrow the scope of disallowance, as the definition of legislative order [instrument] appears to be significantly narrower than the current definition of regulation. However, after careful consideration we are satisfied that the provisions in the bill that separate the publication and the disallowance of delegated legislation, and the broad definition of disallowable instrument, will in fact have the opposite effect. For instance, paragraph (c) of the definition includes instruments that have significant legislative effect. This focuses on the substance of delegated legislation rather than its form or description, and reverses the current position that allows delegated legislation to be excluded from the disallowance regime depending on how it is described. We are therefore satisfied that the bill would increase parliamentary oversight of the use of delegated powers by the Executive, and make it more difficult to avoid disallowance.

Other matters

Should the bill be enacted, we note that this committee would need to give careful consideration to practical issues that may arise from the bill’s proposed changes to the definition of disallowable instruments. In particular, we note that two of the three categories of disallowable instruments would be required to be presented to the House, but instruments of significant legislative effect would not. While the vast majority of instruments would fall within the first two categories, we consider there is a need for Standing Orders to put the jurisdiction of this committee to scrutinise all three categories beyond doubt. We will be encouraging the Standing Orders Committee to consider this matter in its current review of the Standing Orders.

Appendix

Committee process

The Legislation Bill was referred to the committee on 3 August 2010. The closing date for submissions was 23 September 2010. We received and considered 9 submissions from interested groups and individuals. We heard 5 submissions.

We received advice from the Parliamentary Counsel Office and the Ministry of Justice.

Committee membership

Charles Chauvel (Chairperson)

Amy Adams

Aaron Gilmore

Chris Hipkins

Rahui Katene

Tim Macindoe

Moana Mackey


  • 1   Presentation of New Zealand Statute Law (NZLC R104) and Review of the Statutes Drafting and Compilation Act 1920 (NZLC R107)