Legislation Bill

Government Bill

275—2

As reported from the Justice Committee

Commentary

Recommendation

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

Introduction

The Legislation Bill seeks to bring together the law relating to legislation to ensure New Zealand’s law is easy to find, use, and understand, and is of a high quality. It would rewrite and replace the Legislation Act 2012 and update and re-enact the Interpretation Act 1999, combining the two into one Act.

The bill aims to make it easier to find and access secondary legislation, that is, legislation that is delegated by Parliament and made by the Governor-General by Order in Council, Ministers, officials, and agencies. The bill responds to problems with access to and scrutiny of secondary legislation that were highlighted by the Regulations Review Committee1 and two Government inquiries2. It is part of a wider project called the Access to Secondary Legislation Project (originally the Access to Subordinate Instruments Project).

The bill would implement three features of that project by:

  • defining secondary legislation, other than that made by local authorities

  • requiring agencies to identify and notify all secondary legislation

  • improving access to secondary legislation by requiring that it be published on the New Zealand Legislation website, be presented to the House of Representatives, and be disallowable, unless an exemption applies.

The bill also seeks to improve the quality of law in New Zealand by making agencies subject to certain legislative disclosure requirements when developing Government-initiated legislation. Legislative disclosure statements would provide information about the development and content of legislation proposed by the Government. This should lead to more informed parliamentary and public scrutiny of legislation and produce more robust legislation of a high quality.

The bill would conclude the Government’s implementation of recommendations made by the Law Commission in 2008 regarding the presentation of New Zealand statute law.3

Proposed amendments

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

Access to secondary legislation

Deadlines for lodgement and publication of secondary legislation

We recommend amending and adding transitional provisions in the bill to implement the Access to Secondary Legislation Project in stages, in particular, the requirements for lodgement and publication of secondary legislation. We consider that these amendments would enable the public to know what secondary legislation exists much sooner than under the bill as introduced (which requires existing secondary legislation to be re-published in full). We consider these amendments necessary to ensure there is certainty about the list of secondary legislation that is in force. In our view this is of key importance to ensure that the Access to Secondary Legislation Project is effective.

As the first stage, we recommend that the makers of the secondary legislation only be required to lodge minimum legislative information until the list deadline. Minimum legislative information would be the title of the secondary legislation, the empowering provision, the administering agency, and any other information required by regulations. It is this information that would be used to compile the complete list of secondary legislation.

We suggest that the list deadline be one year after the bill repeals and replaces the Legislation Act 2012 (the main commencement date). However, this deadline could be extended by regulations to a maximum of five years after the main commencement date, or could be earlier if the maker of the secondary legislation and Chief Parliamentary Counsel decided on an earlier deadline. We propose that a regulation-making power also be included to set a date on which any secondary legislation (or classes of secondary legislation) would be revoked if it is not on that definitive list.

As the second stage, we recommend that the maker of the secondary legislation must lodge its secondary legislation before the publication deadline. The secondary legislation would also be able to be revoked on a date set by regulations, if the secondary legislation has not been lodged for publication after the publication deadline.

Publication of consolidations

We recommend amending clause 69 to limit the absolute requirement to publish consolidations of any secondary legislation that is amended to secondary legislation drafted by the Parliamentary Counsel Office, and providing for this to be prescribed in regulations in other cases. This would speed up the transition to full publication of agency-drafted secondary legislation on the New Zealand Legislation website by phasing in the requirement for agencies to prepare and lodge consolidations, and to not apply it in cases where it is inappropriate.

Exemptions from lodgement and publication

The bill as introduced would provide for secondary legislation to be exempted from lodgement and publication requirements:

  • in empowering provisions in Acts

  • in regulations made under clause 145 of the bill

  • where the Chief Parliamentary Counsel determines it is not practical to publish the secondary legislation, or part of it, electronically under clause 76 of the bill.

We consider that these exemptions should be amended to focus on the following two broad categories, referred to in clause 68(2).

The first is a complete exemption from publication where the secondary legislation contains information that cannot be publicly disclosed. These exemptions should be rare and only be conferred by Parliament in the empowering provisions for that secondary legislation.

The second is a partial publication exemption where either the empowering provisions confer this type of exemption or the Chief Parliamentary Counsel determines, under clause 76 of the bill, that there is good reason to allow the full text of the legislation to be made publicly available by alternative means and not on the New Zealand Legislation website. These secondary instruments would still need to be made available to the public in some other way under clause 77 of the bill, and the minimum legislative information would still need to be published.

We also recommend inserting clause 145(1)(c)(i) to provide the ability for regulations to waive the requirements to lodge and publish certain items of minimum legislative information.

Commencement of secondary legislation

Under the bill as introduced, secondary legislation would only come into force on its intended commencement date if it or the minimum legislative information was published before the intended commencement date or an exemption specified in clause 72(1)(b) or (c) applied.

If secondary legislation did not come into force on its intended commencement date, it would come into force on the day after the legislation or minimum legislative information was published under this bill. This would be called a deferred commencement.

We recommend inserting clause 86(la) to provide an editorial power to the Chief Parliamentary Counsel to amend the commencement date in secondary legislation to show the actual date if the secondary legislation has a deferred commencement.

We also recommend amending clause 72 to ensure that the validity of secondary legislation would not be affected by the late publication and deferred commencement of the secondary legislation.

Power to amend titles of secondary legislation

Under the bill as introduced, when existing secondary legislation was listed or republished on the New Zealand Legislation website, there would be many instruments with duplicate titles, or titles that did not identify the secondary legislation well. This could prove confusing.

We recommend inserting clause 86(na) to allow the Chief Parliamentary Counsel the editorial power to adjust the titles of secondary legislation to better identify or distinguish it from other legislation. This would help users to find the secondary legislation they need.

Exemption for council-controlled organisations

We recommend amending clauses 75 and 113 to extend the exemptions that apply to secondary legislation made by local authorities to that made by council-controlled organisations. These amendments would exempt this legislation from the obligations to lodge and publish the legislation under this bill, and to present the legislation to the House of Representatives (unless the empowering provision expressly requires it).

This would avoid anomalies such as requiring traffic bylaws made by Auckland Transport under section 22AB of the Land Transport Act 1998 to be published on the New Zealand Legislation website and presented to the House, whereas traffic bylaws made by Auckland Council under the same provision would not.

House of Representatives disallowance powers

We recommend amending clause 118 to clarify that any secondary legislation amended, revoked, or replaced by the House of Representatives would still be disallowable.

Legislative disclosure requirements

Part 4 of the bill would require the government policy agencies to disclose information about the development and content of the legislation when developing Government-initiated legislation. The information would help the House of Representatives and the public scrutinise the legislation effectively.

We recommend amending clause 101 to clarify the relevant policy agencies that would be subject to these legislative disclosure requirements. The bill as introduced includes Offices of Parliament, which do not promote legislation, but it excludes Crown entities that develop secondary legislation but are not the maker of that legislation. There would also be an overlap in the definition of “relevant policy agency” between entities caught by both the definitions of “department” and “government-related organisation”. Our amendments would ensure the bill better reflects the entities that have policy responsibility for developing legislation.

Interpretation and application of legislation

Interpretation of time periods and months

We recommend removing clause 54(2) to make the interpretation rules for time periods in legislation clearer. We consider that the clause in the bill as introduced is confusing and the additional detail is not necessary in practice. We also recommend amendments to clarify clause 56, which relates to calculating months.

Revision bills

We recommend amending clause 61 to better recognise that Parliament may pass a revision bill with any amendments it chooses.

Incorporation by reference

We recommend amending clause 63 to allow technical matters that are large in size to be incorporated by reference into secondary legislation if otherwise it would reduce accessibility.

We also recommend amending clause 1 of Schedule 2 to provide that the chief executive of an administering agency must be satisfied that it is appropriate to incorporate material by reference into secondary legislation, after having regard to the purpose of the Act. This would require the chief executive to consider the impact of incorporation by reference in terms of the appropriateness of the material to set legal obligations and its accessibility (consistent with the Legislation Design and Advisory Committee’s Legislation Guidelines).

Other matters

We note that work is currently under way to implement the remaining phases of the Access to Secondary Legislation Project. The Parliamentary Counsel Office, with government agencies, is surveying all Acts currently in force to identify empowering provisions, not made by local authorities, that empower the making of secondary legislation.

We understand that a companion bill is expected to be introduced later this year that would amend each provision identified as making secondary legislation so that it states this expressly. This bill would set the framework for that companion bill by making the instruments identified as secondary legislation in the companion bill subject to the requirements of lodgement, publication, presentation, and disallowance specified in this bill.

When it considers the companion bill, the House will decide which provisions empower the making of secondary legislation (other than that made by local authorities). The companion bill would determine the application of this bill, including which instruments must be published on the New Zealand Legislation website, which ones must be presented to the House, and which are disallowable.

We acknowledge the suggestion to add a limb to the definition of “secondary legislation” to catch any other instruments with legislative effect. However, we consider this would perpetuate some of the uncertainty surrounding the current regime by requiring officials and the Regulations Review Committee to judge, on a case-by-case basis, whether an instrument has legislative effect and would therefore be subject to the requirements in this bill. We are satisfied that the best time to decide whether an instrument is secondary legislation is when Parliament confers the power to make it.

We note that the companion bill would exclude secondary legislation made by local authorities. We consider that there is scope to improve the framework for oversight of secondary legislation made by local authorities. However, we understand that this is outside the scope of the Access to Secondary Legislation Project, and it would be a substantial exercise in its own right.

Appendix

Committee process

The Legislation Bill was referred to the committee on 5 December 2017. The closing date for submissions was 23 February 2018. We received and considered 8 submissions from interested groups and individuals. We heard oral evidence from 2 submitters.

We received advice from the Parliamentary Counsel Office, the Treasury, Inland Revenue, and the Ministry of Justice. The Regulations Review Committee provided advice to the committee on the powers contained in clause 114 and Schedule 3.

Committee membership

Raymond Huo (Chairperson)

Virginia Andersen

Hon Maggie Barry

Chris Bishop

Hon Mark Mitchell

Greg O’Connor

Priyanca Radhakrishnan

Hon Nick Smith

1 Regulations Review Committee, Report on the inquiry into the oversight of disallowable instruments that are not legislative instruments (I.16H), July 2014.

2 Government Inquiry into the Whey Protein Concentrate Contamination Incident, Report on New Zealand’s Dairy Food Safety Regulatory System, December 2013; New Zealand Productivity Commission, Report on the inquiry into regulatory institutions and practice, July 2014.

3 Law Commission, Presentation of New Zealand statute law (NZLC R104), October 2008.