LAC Guidelines: Introduction
Role of legislation
Legal rules are essential to the functioning of our society. Increasingly they are found in legislation. They cover a broad range of subject areas and activities. They include rules:
- for maintaining the structure of society (eg, the criminal law and the electoral law);
- for regulating relations between individuals (eg, family law and the law of contract);
- for regulating activities in a modern industrial society (eg, safety codes and industrial relations);
- for providing and maintaining essential services beneficial to the development of society (eg, health, education and welfare legislation);
- for facilitating private activity (eg, company law and partnership);
- for gathering taxes to finance the provision of public services; and
- for establishing the institutions to carry out these activities.
This body of rules imposes restraints on individuals and groups within society and regulates the way they exercise various freedoms. But at the same time it both confers and protects important rights, liberties and benefits. As a system it works only if the great majority of society and all major sections within it see it as supporting and protecting their interests.
The balances in society are constantly changing and the legal rules, therefore, are in need of constant review and adjustment. At any time the bulk of the law will remain constant. But the Government of the day must assume responsibility for assessing changes in the political, economic and social environment and for determining whether adjustments to the law are needed in response to those changes. Where such adjustments are proposed, they will be unlikely to gain broad acceptance unless they have been developed through an adequate process, including appropriate consultation. There are also important legal principles relating to fairness and the preservation of individual liberty that need to be complied with if the legislation is to prove acceptable. In addition to being acceptable, new legislation must also be effective. This means it must be technically sound and fit into the general fabric of the existing law. It should also be accessible and understandable.
Application of Guidelines
These Guidelines set out some of the more important matters relating to both process and content that need to be considered in the promotion of legislative change, whether it is to be effected by statute or by regulation, rules, orders, notices or other subordinate legislation.
It is intended that the Guidelines will be periodically reviewed to enhance their usefulness to those who prepare legislation. Suggestions for additions or amendments are welcomed at any time by the Legislation Advisory Committee.
What can be done to ensure that the Guidelines are applied? There are two answers to that question, one more general, the other specific. The general answer looks to the overall process for the preparation and enactment of legislation. Those who have a hand in the preparation of legislation—within departments, other government bodies and the Parliamentary Counsel Office—have a major responsibility for giving effect to the Guidelines. No doubt some of those who make submissions on Bills will also call attention to instances where they consider the Guidelines have not been followed. It is equally for the relevant select committee and for Parliament itself to consider the application of the Guidelines. Ignoring the Guidelines may mean poor legislation and often result in political and administrative embarrassment.
The specific answer looks to those who have the principal responsibility for legislation—its content and form and the method of its preparation. The responsibility is ultimately with Ministers. But they look to their departmental officials to satisfy them that the Guidelines have been applied or, when they have not been, that they have at least been carefully considered and departed from only for good reason which is clearly stated.
The Guidelines include a checklist of the matters addressed by the Guidelines to assist officials who have primary responsibility for a new piece of legislation (whether a statute, regulations, rules, order, notice or other subordinate legislation).
Other LAC publications
A list of other publications of the Legislation Advisory Committee is set out at the end of these Guidelines (see Other LAC publications). Many of these publications will also be of assistance in the preparation of legislation.
The Legislation Advisory Committee wishes to acknowledge and thank its predecessor committees for the excellence of the previous editions of the Guidelines, on which this edition is substantially based. Members of the Committee themselves prepared most chapters of this edition, with the remaining chapters being prepared by Alison Lewes (Ministry of Justice, Secretary of the Committee), Fiona Leonard, Bill Moore, and Mark Gobbi of the Parliamentary Counsel Office, Phillippa Smith of the State Services Commission, and the Bill of Rights section of the Ministry of Justice. The Committee thanks all of these contributors for their excellent work, and also thanks Guy Beatson, Ross Carter, Denese Henare, Sir Kenneth Keith, Rebecca Kitteridge, Ivan Kwok, Peter Mumford, Robin Oliver, Roger Palairet, Sir Geoffrey Palmer, David Pickens, Marie Shroff, Hilary Talbot, and Nicola White who reviewed a draft of the Guidelines and provided valuable comments.
The Legislation Advisory Committee wishes to acknowledge and thank the following authors for their work in preparing the material included in this Supplement:
Chapter 3A, Part 1, Statutory Interpretation
Chapter 13, Appeal and Review
Chapter 16, Cross-border Issues
Chapter 3A, Part 2, Statutory Interpretation
Chapter 11, Part 4, Limitation period for civil remedies, Chapter 12, replacement paragraph 12.5.3 Chapter 12, Part 7, Limitation period for criminal offences
Chapter 10, Delegation of Lawmaking Power Chapter 10A, The Exercise of Delegated Lawmaking Powers
Chapter 4, New Zealand Bill of Rights Act 1990 and Human Rights Act 1993
The Legislation Advisory Committee wishes to thank Debra Angus, Hugo Hoffmann, Julian Ludbrook, Jeff Orr, Roger Palairet, Hilary Talbot, Caroline Taylor, and Rebecca Wimp for their advice and assistance in the development of the Principles for Incorporation by Reference set out in Appendix 4.
The Legislation Advisory Committee also wishes to thank Debra Angus, Natalie Baird, Hon Justice Baragwanath, Professor Jock Brookfield, Ross Carter, Sir Kenneth Keith, Joy Liddicoat, Office of Legal Counsel—Ministry of Justice, Judge David Sheppard, Mark Steel, and Bryce Wilkinson who reviewed a draft of the Supplement and provided valuable comments.
The Legislation Advisory Committee also wishes to thank Daphne Brasell and her team at the Parliamentary Counsel Office for proof-reading the Supplement.
Committee members who were involved in the preparation of this Supplement
Mr Richard Clarke QC, Chairperson
Mr Guy Beatson, Chief Economist, Ministry of Economic Development
Professor John Burrows, Canterbury University
Hon Justice Chambers
Ms Cheryl Gwyn, Deputy Secretary of Justice
Mr Jack Hodder, Partner, Chapman Tripp
Mr Grant Liddell, Crown Counsel
Professor Julie Maxton, Auckland University
Ms Janet McLean, Senior Lecturer, Auckland University
Hon Justice Robertson, President, Law Commission
Mr George Tanner QC, Chief Parliamentary Counsel
The LAC Guidelines are intended to provide guidance of a general nature for persons involved in the preparation of legislation. Those using the Guidelines are advised that:—
- Neither the New Zealand government, the Legislation Advisory Committee ("the Committee"), nor any of the authors of the Guidelines makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, correctness, completeness, or use of any information in the Guidelines, nor represents that its use would not infringe on privately owned rights.
- The Committee may change, delete, add to, or otherwise amend information contained in the Guidelines without notice.
- Nothing contained in the Guidelines is, or may be relied on as, a promise or representation by the New Zealand government, the Committee, or any of the authors as to past, present, or future law or policy.
- The contents of the Guidelines must not be construed as legal, business, or tax advice and those using the Guidelines should take specific advice from qualified professional people before undertaking any action following information received from the Guidelines.
- Any reference in the Guidelines to any specific commercial product, process, or service by trade name, trademark, manufacture, or otherwise does not constitute an endorsement, recommendation, or favouring by the New Zealand government, the Committee, or any of the authors.
- The Guidelines must be read in conjunction with this disclaimer and any other disclaimer that forms part of them.