Legislation Act 2019

Schedule 2 Incorporation by reference

ss 65, 66

1 Requirements to be met on proposal to incorporate material by reference

Before secondary legislation incorporating material by reference in reliance on section 64 is made, the chief executive of the administering agency must—

(a)

give public notice of the proposal to incorporate the material, of the reasons for the proposal, and of how the material has been made publicly available; and

(b)

ensure that copies of the proposed material are publicly available in that way; and

(c)

allow a reasonable opportunity for persons to comment on the proposal; and

(d)

after considering any comments made and having regard to the purpose of this Act, be satisfied that—

(i)

the secondary legislation clearly identifies the material incorporated; and

(ii)

the means of making the material publicly available is sufficient to enable persons to whom the law applies to find and obtain copies of the material incorporated with reasonable ease; and

(iii)

it is otherwise appropriate to incorporate the proposed material as part of the secondary legislation.

Compare: 2012 No 119 s 51

2 Access to material incorporated by reference

If an instrument incorporating material by reference in reliance on section 64 is made, the chief executive of the administering agency must—

(a)

give public notice of how the material is publicly available (or set this out in the secondary legislation); and

(b)

ensure that copies of the proposed material are publicly available in that way.

Compare: 2012 No 119 s 52

3 What is required to make material publicly available

(1)

A requirement to make material publicly available under this schedule is a requirement that—

(a)

the material is—

(i)

made available on (or via a link on) an Internet site maintained by or on behalf of the administering agency, free of charge, unless doing so would infringe copyright; or

(ii)

in any other case, available for inspection, free of charge, at a place notified on an Internet site maintained by or on behalf of the administering agency; and

(b)

the material is available for purchase, at a reasonable cost, from a place notified on an Internet site maintained by or on behalf of the administering agency; and

(c)

if the material is not in an official New Zealand language, an accurate translation in an official New Zealand language of the material is also available as set out in paragraphs (a) and (b).

(2)

A chief executive must not rely on section 66 of the Copyright Act 1994 as authority to make the proposed material available on an Internet site.

4 Proof of material incorporated by reference

(1)

A copy of material incorporated by reference in secondary legislation in reliance on section 64 must be—

(a)

certified as a correct copy of the material by the chief executive of the administering agency; and

(b)

retained by the chief executive.

(2)

The production in a proceeding of a copy of the material incorporated by reference that is certified as a correct copy by the chief executive is, in the absence of evidence to the contrary, sufficient evidence of the material incorporated by reference in the secondary legislation.

(3)

See also Part 4 of the Contract and Commercial Law Act 2017, which enables this requirement to be met by certifying and retaining a copy in an electronic form.

Compare: 2012 No 119 s 54

5 Material incorporated by reference need not be published under this Act or presented to House of Representatives

Subpart 1 of Part 3 and section 114 of this Act do not apply to material that is incorporated by reference in secondary legislation in reliance on section 64 merely because it is incorporated.

Compare: 2012 No 119 s 55

6 Failure to comply does not invalidate

A failure to comply with this schedule does not invalidate secondary legislation that incorporates material by reference.

Compare: 2012 No 119 ss 51(5), 52(6)