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Government Response to the Report of the Regulations Review Committee on its Inquiry into Instruments Deemed to be Regulations—An Examination of Delegated Legislation

Presented to the House of Representatives in accordance with Standing Order 251

INTRODUCTION

1. The Government welcomes the Committee's report Inquiry into instruments deemed to be regulations—An examination of delegated legislation. The report concerns types of delegated legislation that differ from traditional regulations in that they are generally not made by the Governor-General in Council, but are instead made by a Minister, a statutory officer, or an agency. An Act that empowers a Minister, officer, or agency to make legislative instruments usually makes the instruments subject to the scrutiny of the Regulations Review Committee by deeming the instruments to be regulations for the purposes of the Regulations (Disallowance) Act 1989 (hence the term "deemed regulations").

2. The Committee's report represents a helpful analysis of difficult issues that are raised by deemed regulations. With the proliferation of deemed regulations in recent years, concerns have been raised about the proper use of deemed regulations. The Committee's report is therefore timely as it provides a framework for addressing those concerns.

3. In the Committee's assessment, deemed regulations are appropriate in some cases; indeed in some circumstances they may be preferable to traditional regulations. The Committee proposes certain principles for considering whether Bills should include powers to make deemed regulations. The Government agrees with the principles identified by the Committee for that purpose, and has already taken action to implement the Committee's recommendations that Ministers be advised whether draft Bills contain powers to make deemed regulations, and, if that is the case, whether the relevant principles set out in the Committee's report have been taken into account.

4. In addition to the appropriateness of empowering provisions authorising the making of deemed regulations, the Committee's report also addresses concerns about the accessibility of deemed regulations. The Regulations Review Committee also makes recommendations relating to the making of deemed regulations, and proposes the adoption of a number of principles to govern processes by which deemed regulations are formulated. The Government agrees that both the question of the accessibility of deemed regulations as well as the principles governing the making of deemed regulations deserve careful consideration.

5. The Committee's recommendations for the making of deemed regulations and enhancing their accessibility raise administrative and resource issues, as well as wider questions of principle, that need to be addressed. To ensure that this occurs, the Government intends to establish a working party on deemed regulations ("the working party"). The working party will include representatives from the Parliamentary Counsel Office, the Cabinet Office, the Ministry of Justice, the Ministry of Transport, and the Ministry of Commerce. It will be convened by the Parliamentary Counsel Office. The working party will report to the Government on options for making deemed regulations more accessible in light of the Committee's recommendations. It will also report on the Committee's recommendations relating to the processes by which regulations are made. That report will provide the basis for the Government's consideration of the issues raised by the Committee's recommendations. The Government intends to present a further Response to the Committee's recommendations by 30 June 2000.

RESPONSE TO RECOMMENDATIONS

Recommendations and Government Response

Recommendations 1 and 2

6. The Regulations Review Committee recommends that the principles identified in the report are taken into account when legislation is being developed, in order to determine whether traditional or deemed regulations should be created.

7. The Committee recommends that the Cabinet Office Manual—Format for Submissions to the Cabinet Legislation Committee on Draft Bills Ready for Introduction be amended to require that any power to make deemed regulations in legislation is identified and conforms with the principles stated in the Committee's report.

Response

8. The Government has already taken action to implement these recommendations.

9. The Government has directed that the cover sheet for draft Bills submitted to the Cabinet Legislation Committee for consideration be amended so as to draw to Ministers' attention:

  • whether or not the proposed Bill includes any provision empowering the making of deemed regulations; and
  • if so, the reasons for the provision, taking into account the principles identified by the Committee in its report.

10. The Government has also directed that,—

  • if a Government Bill includes any provision empowering the making of deemed regulations, the reason for the provision should be included in the explanatory note to the Bill; and
  • the cover sheet for a draft Bill should be amended so as to indicate, in such a case, that the explanatory note to the Bill sets out the reason for the provision.

11. The adoption of these recommendations will ensure that Ministers are alerted to any proposal in new legislation to empower the making of deemed regulations, and have the opportunity to satisfy themselves that the power is appropriate.

12. It will be noted that the Government has adopted Recommendation 2 in a slightly modified form. That recommendation is for the cover sheet for draft Bills to require that any proposed legislative power conform with the relevant principles. The Government does not consider it appropriate to adopt an absolute requirement of conformity with the principles in every case, any more than it can be guaranteed that every Bill complies with the New Zealand Bill of Rights Act 1990. The cover sheet is intended to indicate to Ministers that certain matters have been addressed in developing the legislative proposal, not to impose limitations on the substantive content of a Bill.

13. The amendment agreed to by the Government will mean that provisions empowering the making of deemed regulations will not be included in Bills unless the relevant principles identified by the Committee have been taken into account. The Government considers that the principles identified by the Committee provide a sound basis for assessing the legitimacy and desirability of powers to make deemed regulations.

14. The Committee identified the following 4 principles:

Principle 1: The importance of the delegated power

The application of this principle requires an assessment of the effect of the delegated legislation on the rights and interests of individuals. For example, criminal offences should not be created by deemed regulations.

Principle 2: The subject matter of the power

The application of this principle takes into account that certain subject matters may be more appropriately regulated by processes other than those that govern traditional regulations. For example, if the delegated legislation concerns relatively detailed, technical matters, not subject to criminal sanction, it may be appropriate for those matters to be regulated by a Minister or an agency.

Principle 3: The application of the power

The application of this principle takes into account that delegation of legislative power to persons or agencies other than the Governor-General in Council may be more appropriate if the legislative power will affect a narrowly defined or clearly identifiable group, rather than the public at large. If the group affected is small, it is possible to engage in meaningful consultation before the delegated legislation is made, and also to ensure that the legislation is available to members of that group. On the other hand, if the legislative power will impact on a wide section of the public, it should be the subject of traditional regulations.

Principle 4: The agency to whom the power is delegated

This principle calls for an assessment of the most appropriate legislator for the particular delegated legislation, whether it be the Governor-General in Council, an individual Minister, an officer, or an agency. The legislator must have qualified and competent personnel to draft the delegated legislation, and be able to demonstrate that it has developed and followed an appropriate process for making the legislation.

15. The Government notes that Principle 4 does not expressly deal with provisions in a draft Bill that delegate legislative power to a new agency that will come into being only on or after the commencement of the Bill. In such a case, it will be necessary to examine whether the new agency will have the necessary resources and specialist expertise to exercise the legislative powers proposed to be conferred by the Bill.

Recommendations 3 to 12 and Recommendations 14 to 16

16. These recommendations concern the accessibility of deemed regulations, and the processes by which deemed regulations are developed and made. Many of these recommendations raise not only important questions of principle, but also significant resource and administrative issues.

17. Examples of the Committee's recommendations that raise complex issues include the following:

  • Approval of all deemed regulations by Cabinet (recommendation 3):
  • Publication of deemed regulations in the Statutory Regulations series in cases where deemed regulations create obligations of general application or interest to the public (part of recommendation 4):
  • Consideration of enhancing the public accessibility of deemed regulations, including an investigation of making them available for purchase and inspection from an identifiable source or requiring deemed regulations to be deposited with the National Library, or through public libraries (recommendation 7):
  • Consideration of publishing a central list of deemed regulations on the Internet (recommendation 8):
  • Development of detailed drafting guidelines by the Chief Parliamentary Counsel in consultation with relevant government departments, regulation-making authorities, and the Regulations Review Committee (recommendation 10).

(A full summary of the recommendations contained in the committee's Report is appended to this Response.)

18. The Committee's recommendations merit careful consideration. That consideration should encompass an examination of relevant principles as well as an assessment of available options for addressing the issues raised by the Committee. Consultation will be required with departments as well as regulation-making authorities, and groups particularly affected by deemed regulations. The report of the working party referred to in paragraph 5 will provide the basis for the Government's consideration, and the Government intends to present a further Response by 30 June 2000.

Recommendation 13

19. The Committee recommends that the Government consider certain proposals for extending the consultation process for land transport rules.

Response

20. The proposals referred to envisage opportunities for interested parties to comment on final drafts of land transport rules, and contemplate referrals of draft rules to a parliamentary select committee. The Government intends to invite the Minister of Transport to comment on the proposals and report to the Government by June 2000.

Conclusion

21. The Committee's recommendations deal with the following broad matters:

  • The appropriateness of provisions in Bills empowering deemed regulations to be made.
  • The processes by which deemed regulations are made, and the principles that should apply to those processes.
  • Ways of enhancing the accessibility of deemed regulations.

22. The Government has already taken action on the matter of new provisions empowering deemed regulations to be made, and has decided to implement the substance of the recommendations that are relevant to that matter. The recommendations of the Committee that concern the making of deemed regulations and the accessibility of deemed regulations raise administrative and resource issues, as well as wider questions of principle. The Government will establish a working party to report on those recommendations. The report of the working party will provide the basis for the Government's consideration of the issues, and the Government intends to present a further Response to the Committee's recommendations by 30 June 2000.

APPENDIX

Excerpt from the Report of the Regulations Review Committee on its Inquiry into instruments deemed to be regulations—An examination of delegated legislation (AJHR, I.16R, 1999, p. 4)
Summary of recommendations
  • That the principles identified in this report are taken into account when legislation is being developed, in order to determine whether traditional regulations or deemed regulations should be created. (Page 18)
  • That the Cabinet Office Manual—Format for Submissions to the Cabinet Legislation Committee on Draft Bills Ready for Introduction be amended to require that any power to make deemed regulations in legislation is identified and conforms with the principles stated in this report. (Page 18)
  • That all deemed regulations be approved by the Cabinet as part of the promulgation process. (Page 19)
  • That the general principles identified in this report for printing and publication be applied to all deemed regulations. (Page 23)
  • That existing Acts which empower the making of instruments deemed to be regulations for the purposes of the Regulations (Disallowance) Act 1989 but not for the purposes of the Acts and Regulations Publication Act 1989 be amended to comply with standard publication and notification requirements, consistent with the principles in this report. (Page 23)
  • That all new bills for introduction which empower the making of deemed regulations include standard printing and publication requirements, consistent with the principles in this report. (Page 23)
  • That the Government consider how public accessibility to deemed regulations can be enhanced, including an investigation of making them available for purchase and inspection from an identifiable source or requiring deemed regulations to be deposited with the National Library, or through public libraries. (Page 24)
  • That the Government address the limited public availability of deemed regulations and consider improving access by publishing a central list of deemed regulations on the Internet. (Page 25)
  • That the Table of Acts and Ordinances and Statutory Regulations in Force list all deemed regulations not published in the Statutory Regulations series. (Page 25)
  • That the Government ask the Chief Parliamentary Counsel to develop detailed drafting guidelines for deemed regulations in consultation with relevant government departments, regulation-making authorities and the Regulations Review Committee. (Page 27)
  • That the Government ensure that the criteria for good drafting practice identified in this report are applied to all deemed regulations. (Page 27)
  • That the general principles for effective consultation outlined in this report apply to all deemed regulations. (Page 30)
  • That the Government consider the proposal outlined in this report for extending the consultation process for land transport rules. (Page 31)
  • That the Government investigate opportunities for adopting a negotiated rule-making process. (Page 32)
  • That the general principles outlined in this report for the incorporation of material by reference into deemed regulations are adopted. (Page 34)
  • That the general principles outlined in this report for the use of advisory material and guidance notes are adopted. (Page 35)

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