LAC Guidelines: Summary

Summary, Chapter 1: Means of achieving the policy objective
Summary, Chapter 2: Understandable and accessible legislation
Summary, Chapter 3: Basic principles of New Zealand's legal and constitutional system
Summary, Chapter 3A: Statutory interpretation
Summary, Chapter 4: New Zealand Bill of Rights Act 1990 and Human Rights Act 1993
Summary, Chapter 5: Principles of the Treaty of Waitangi
Summary, Chapter 6: International obligations and standards
Summary, Chapter 7: Relationship to existing law
Summary, Chapter 8: Creation of a new public power
Summary, Chapter 9: Creation of a new public body
Summary, Chapter 10: Delegation of legislative power
Summary, Chapter 10A: The exercise of delegated legislative power
Summary, Chapter 11: Remedies
Summary, Chapter 13: Appeal or review
Summary, Chapter 14: Powers of entry and search
Summary, Chapter 15: Powers to require and use personal information
Summary, Chapter 16: Cross border issues
Summary, Chapter 17: Bills after introduction
Summary, Chapter 18: Alternative Dispute Resolution (ADR)

Chapter 1: Means of achieving the policy objective

If new legislation is proposed, it is important that the process below is followed to avoid costs and poor quality legislation. [Introduction]

It is essential to, first, define the policy objective/s, then, secondly, to consider when the policy will come into effect and the transitional measures necessary for implementation. [Part 1]

As legislation can be costly, other means of achieving the objectives should be identified and considered. Officials should carry out an informed consideration of the options available and their implications, costs, and benefits. [Part 2]

All relevant departments and agencies should be consulted in regard to the legislation before it is approved by Cabinet. This ensures problems are identified early and may reveal conflicts or inconsistencies with legislation being prepared by another department. [Part 3]

Consultation should be carried out with those likely to be affected. This allows for more and better information to be obtained for efficient decision-making and allows the Government to be more responsive. [Part 4]

There is currently a wide range of consultative approaches such as workshops and questionnaires. A decision on the appropriateness of a certain approach should take in to consideration the nature of the group being consulted and the resources, including time. [1.4.3]

Follow the requirements for legislative proposals in the Cabinet Office Manual; provide the Parliamentary Counsel Office with a generous period of time in which to draft the legislative proposal, and follow the advice that it has provided in the Guide to Working with the Parliamentary Counsel Office, especially regarding the form and content of instructions. [Part 5]

Chapter 2: Understandable and accessible legislation

Policy-makers and drafters have a responsibility to make legislation understandable and accessible. [Introduction]

The drafting of legislation is a complex process that involves extensive interaction between drafter and departmental officials. The drafter must take in to consideration that high quality legislation: [Part 1]

endures
does not need frequent amending
gives effect to the Government's policies
reduces fiscal risks to the Government
avoids the courts having to decide what it means
reduces compliance costs for users
limits the scope for avoidance.

The departmental lawyer plays a key role in producing quality legislation and should have a thorough grasp of the broad policy objectives of the proposed legislation. [Part 2] Each draft of legislation should be read critically by the departmental lawyer to ensure it-

is technically sound
will give effect to the desired policy
is internally consistent
is compatible with the general body of statute and case law
will be clear and understandable to users.

The drafter should work constructively with the instructors, seek clarification where necessary, endeavour to devise solutions to problems that arise, and assist in resolving differences of opinion among departments. [Part 3]

To be accessible and understandable, all legislation should be an example of: [Part 4]

good organisation of material: for example, the material should be organised in a logical order and headings and Parts should be used to aid comprehension
use of clear language: for example, sentences should be short and well-structured and archaic language should be avoided.

Chapter 3: Basic principles of New Zealand's legal and constitutional system

When preparing legislation it is necessary to consider its place within the wider law and the principles by which it will be interpreted. [Part 1] It is important to check whether the legislation complies with the fundamental common law principles, including the following: [Fundamental common law principles]

The dignity of the individual is a paramount concern of the law.
The principle of legality, which essentially means that legislation will be interpreted in a manner consistent with legal principles.
The citizen is entitled to have access to the courts, despite legislation which might be construed to remove it.
Construction of legislation is a matter for the courts and not the executive.
No one will be required to perform something that that is impossible; from which follows the presumption against construing legislation as having retrospective effect.
No one is guilty of a crime who has not committed a criminal act with knowledge of the facts that make it criminal.
The citizen is not required to answer questions by anyone, including officials
The principle in favour of liberty of the subject
No one may be penalised except by a general measure rather than by act of attainder
No tax will be imposed expect by Parliament.
Property will not be expropriated without full compensation.
Everyone exercising public authority must act legally, reasonably, and honestly.
The principle of the rule of law that no one, including the Crown in exercise of executive authority, is above the law.
All are treated equally under the law.
New Zealand's constitutional conventions are not infringed.
New Zealand law conforms with both international law and our treaty obligations.
Delegated authority must be exercised within the power actually conferred, despite use of subjective language.
Foreign tax legislation is unenforceable in New Zealand courts.

Answering the following questions will assist in determining whether a legislative proposal complies with these principles:

Are established rights being altered? Property rights are an important matter here. In particular, the question is whether or not legislation removing property rights should also provide for compensation for the loss of such rights. [Part 2]

Have pre-existing legal situations been affected? Legislation should not interfere with accrued rights and duties, nor should it create criminal liability to penalty retrospectively. [Part 3]

Does the legislation enable the levying of money? Parliament alone can levy money for the Crown. The difference between a tax and a fee is that a tax must be compulsory, for public purposes, and enforceable by law. On the other hand, a fee should bear a proper relation to the cost of providing a service. [Part 4]

If it appears that a fee for one service is used to cross-subsidise another service, consider whether the cross-subsidisation is appropriate in light of the empowering Act, the Audit Office guidelines, and the views of the Regulations Review Committee. [3.4.3]

Chapter 3A: Statutory interpretation

Those preparing legislation should be mindful of the rules and conventions which the courts apply in the process of interpretation. [Part 1]

The main rule for the interpretation of statutes in New Zealand is contained in section 5(1) of the Interpretation Act 1999. [3A.1.2]

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

The true interpretation of a provision is generally its most natural reading, taking into account purpose and relevant context.

Courts are required to interpret an Act in the light of its purpose. Statements of purpose in the Act should thus be carefully considered and expressed. [The text of the Act]

The purposive approach to interpretation is now the dominant approach. It ensures that narrow meanings are not attributed to words if that would defeat Parliament's purpose. [Purpose]

Courts normally will not supplement or gloss words. It is thus important that all matters necessary for the effective operation of the Act be spelled out in the Act. [3A.1.3]

The courts will take a variety of matters external to the Act into account when interpreting it. It is thus essential that those preparing the legislation bear these matters in mind, and ensure that the Act's relation with them is very clear. These external matters include: [3A.1.3]

treaties
the common law
other statutes
documents created during the legislation's inception, for example, explanatory notes, select committee commentaries, etc. [Legislative history]

Courts attempt to interpret Acts consistently with fundamental values of the legal system, many of which are contained in the Bill of Rights Act 1990. Those preparing legislation should attempt to ensure that it is consistent with these values. [Values]

The Interpretation Act 1999 should be considered when new legislation is being prepared. [3A.2.3]

Although it is possible to depart from the provisions of the Act, this should only be done if there are good reasons for doing so. [3A.2.3] In general-

new legislation should be consistent with the Act; and
terms and expressions defined in the Act should have the same meanings in new legislation; and
matters provided for in the Act should not be restated in new legislation.

If there is doubt as to the meaning or application of any provision of the Act, Parliamentary Counsel should be consulted. [3A.2.3]

Chapter 4: New Zealand Bill of Rights Act 1990 and Human Rights Act 1993

When developing a policy, officials should first consider whether it is consistent with the rights and freedoms in the Bill of Rights Act. [Background]

Officials should consider the objective of this legislation and whether this affects any of the following rights and freedoms affirmed in the Bill of Rights Act 1990 [Part 1]:

life and security of the person [4.1.2]
democratic and civil rights
non-discrimination and minority rights
search, arrest and detention rights
criminal procedure rights
rights to justice.

If the proposal breaches any of these rights and freedoms, it should meet the requirements of the inquiry under Moonen to qualify as a justified limitation under section 5. [Stage Two]

All legislation should comply with the Human Rights Act 1993. Part 1A of the Human Rights Act 1993 applies to any discrimination in the majority of government and public sector activities. [4.2.2A] The following process should be followed to establish compliance with Part 1A of the Human Rights Act 1993:

Does the proposed legislation, policy, practice, or service make a distinction based on one of the prohibited grounds of discrimination?
Does that distinction involve a disadvantage to the affected person or group?
If the proposed legislation is not related to affirmative action it is likely it will be prima facie discriminatory under Part 1A of the Human Rights Act 1993 and it must then be considered whether this is justified.

Part 2 of the Human Rights Act 1993 applies to any discrimination in private, non-government activities which occurs in certain areas of public life. [4.2.2B] It also applies to discrimination in government and public sector activities in the areas of employment, racial or sexual harassment, racial disharmony, and victimisation.

The proposed legislation has grounds for discrimination if it includes:

identifying a particular person or group for different treatment,
an action or activity that appears neutral yet has an indirect, disproportionate effect on a particular person or group. If this is the case it must be established whether this group fits into one or more of the prohibited grounds of discrimination.

Secondly, if the proposed legislation has grounds for discrimination it must be established whether the different treatment relates to an area of public life covered by Part 2 of the Human Rights Act 1993. Thirdly, consider whether this different treatment is disadvantageous.

Lastly, if the proposed legislation has grounds for discrimination and is deemed disadvantageous it must be considered whether the proposed legislation is justifiable.

Chapter 5: Principles of the Treaty of Waitangi

The Treaty of Waitangi does not directly create rights or obligations in law except where it is given effect by legislation. However, legislation is expected to comply with the principles of the Treaty. [Background]

Maori should be consulted in some appropriate way if the proposed legislation would affect Maori rights and interests protected by Article 2 of the Treaty. [Part 1]

The following should be considered to establish any conflicts between the Treaty and the legislation: [Part 2]

what, if any, Maori rights and interests protected by the Treaty will be affected by the legislation
how the Crown's power to govern (kawanatanga) relates to them
how they will be affected, in light of the presumption referred to above.

If a provision giving some effect to the Treaty or its principles is to be included, the relevant rights and interests should, if possible, be identified in the legislation and the appropriate provision must be selected in the knowledge [5.2.3]-

that it may be taken as defining the extent to which the Act gives effect to the Treaty; but also
that a non-specific provision in the range mentioned above, whichever one is adopted, may simply be used by Courts to ensure some recognition of Maori interests
if any of the rights and interests affected by the proposed legislation are also common law rights, special considerations apply.

Some classes of rights and interests covered by Article 2 of the Treaty have been recognised at common law, quite apart from the Treaty. Being legal rights and interests, they are in a stronger position than Treaty rights and interests and are protected by more than the presumption that Parliament intends to comply with Treaty principles. [Part 3]

If the legislation is of general application, whether it is intended to apply to such rights and interests may need special consideration.

If the rights and interests are to be extinguished or otherwise affected, precise wording to achieve this should be used.

Chapter 6: International obligations

International agreements are the main source of New Zealand's international obligations. New Zealand must comply with these obligations and its legislation must be consistent with them. [Background]

Legislation is often required to give effect to New Zealand's international obligations. This can be done in several ways (and more than one method may be used). [Part 2]

The force of law method sets out the full or partial text of an international agreement and uses a formula to give it the force of law. It is used if an agreement amounts to a self-contained body of law that does not require any operational machinery to support it.

The subordination method involves drafting a provision in an Act that authorises the making of regulations or rules to give effect to a particular agreement. It is used if Parliament wishes to delegate technical matters to the Executive.

The wording method requires translating the requirements of an agreement into legislative form. This method is the most commonly used because most agreements tend to be expressed in general language that usually requires some form of translation or adaptation to be effective in New Zealand. Care should be taken with terms that have specific meanings in international law (for example, State).

Many of the Acts that implement agreements have common features. They are designed to make these Acts easier to use, primarily by identifying the relevant agreement. [legislation template]

The text of agreements must be annexed to the implementing legislation if it is given the force of law. In all other cases, the text is usually annexed unless doing so would be impracticable or unhelpful.

New Zealand has a consultative treaty-making process that requires any significant international agreement to be tabled in Parliament and considered by the relevant Select Committee well before the Executive enters into the agreement and well before the relevant implementing legislation is introduced.

Those preparing legislation that may be relevant to New Zealand's international obligations should consult MFAT.

Chapter 7: Relationship to existing law

New legislation is never complete and entire unto itself. When preparing new legislation, existing law should be taken in to consideration to establish any useful precedents, inconsistency or overlap, safeguards to be included, or any transitional or savings provisions required. [Background]

The Interpretation Act 1999 should be considered when new legislation is being prepared. New legislation should be consistent with the Interpretation Act and terms defined in the Interpretation Act should have the same meanings in the new legislation. [7.1.3]

Those responsible should identify all existing legislation that either relates to the same matters as the new legislation or implements policies that are similar to those of the new legislation. [7.2.3]

Precedents from existing legislation should be used unless there are good reasons not to. If there are conflicting precedents, the best precedent should be used even if it is not the most recent.

In addition to legislation, there is a large body of Judge-made law which is usually referred to as the common law. Important examples of the common law are the basic principles referred to in Chapter 3. New legislation should also be consistent with the basic principles of New Zealand's legal and constitutional system and common law. [Part 3]

Before commencing the preparation of new legislation those responsible should ascertain how the common law applies to the matters to be covered by the new legislation. [7.3.3]

Publications such as Halsbury's "Laws of England" Butterworths "Laws of New Zealand", and specialist texts should be consulted.

Policy analysts developing enactments must pay attention to savings and transitional issues from the start and allow time for the issues to be considered thoroughly. [What process should policy analysts follow?]

They must make sure that circumstances affected by the coming into force of the enactment are covered by a provision of the Interpretation Act 1999 or a specific provision in the enactment. [Are there special cases to be aware of?]

Lastly, policy analysts should seek advice on these matters from their departmental lawyers, who should have no hesitation about consulting Parliamentary Counsel. [7.4.3]

Chapter 8: Creation of a new public power

The government of New Zealand is largely carried out through powers conferred on public authorities by legislation; these powers are known as public powers. [Background]

Consider whether there are other options for achieving the desired outcome and whether a proposed public power is necessary. [Part 1]

In creating a new power, consider protection for individuals dealing with government or otherwise affected by the exercise of the power. [8.1.2]

When conferring a public power, legislation must choose between the executive, legislature, and the courts. [Part 2] When deciding who should have a public power, the following matters should be considered [8.2.3]:

the importance of the individual rights and interests involved
the importance of the public or state interest involved
the character of the issues to be decided (for instance, fact, policy, discretion, law)
the expertise to be expected of the decision-maker
the context, including the administrative one, in which the issue is to be resolved
the existence of other safeguards over the exercise of power
the procedure commonly used by the proposed decision-maker
the advantage or disadvantage of having a body independent of the government and other public controls making the decision or carrying out the function.

It is important to establish some sort of process and guidelines by which the power is to be exercised. The particular method chosen will depend on the purpose and characteristics of the power, together with the issues to be resolved and the interests affected and the qualities and responsibilities of the decision maker. [Part 3]

Determining the procedure to be used involves deciding whether the decision-maker should:

give a fair hearing (in which case, the content should be determined)
consult (in which case, who should be consulted should be determined)
give public notice and invite comment (in which case, the content and timeframes should be determined)
decide on a more summary basis (in which case, the criteria decision should be based on should be determined.

Professional disciplinary legislation should incorporate the standards set out in the ninth report (1976) of the Public and Administrative Law Reform Committee. [8.3.3]

The power and the process should be clearly stated in the legislation to ensure its proper use. [Part 4]

It is critical to consider the individuals affected by the exercise of the power and to provide appropriate protection if needed. The main qualification for this is when a broader public interest prevails over an individual right or interest. [Part 5]

Chapter 9: Creation of a new public agency

This chapter is in addition to other guidelines. For example, see Annex C to CAB (00) M19/1I (1), which is a diagrammatic summary of how to choose an organisation form. This is contained in Appendix 6 of these Guidelines.

The Public Service departmental form is likely to be preferred where one or more of the following apply [9.1.3]:

the agency will exercise coercive powers of the State
the agency will provide policy advice to Government
the agency will carry out multiple functions, particularly where the functions potentially conflict
ministerial desire to control the process and outcome of the activity (this is indicated by its importance to the Government; or high public and political expectations associated with the activity or the nature of the risks posed to the Crown)
constitutional conventions indicate a need for close Ministerial oversight or direct Ministerial responsibility.

Commercial activities of the Government should be carried out by agencies with commercial objectives. The State enterprise form is most likely to be appropriate where [9.2.3]:

there are commercial objectives and the agency can operate as a profitable business
the Crown wants the business to be operated by an agency that will exhibit a sense of social responsibility by having regard to the interests of the community in which it operates.

Officers of Parliament are rarely created. They are not part of the executive government and in effect, they discharge functions that the House of Representatives itself might carry out. [9.3.2] The recommendations of the Finance and Expenditure Committee in 1989 are appropriate guidance [9.3.3]:

an Office of Parliament must only be created to provide a check on the arbitrary use of power by the executive or discharge functions the House of Representative may carry out.
parliament should often review the appropriateness of each Office of Parliament's status.
each Office of Parliament should be created in separate legislation devoted to that Office.

Crown entities are a significant part of government. They dominate service delivery in areas such as health, education, transport, and science. [Part 4] A public agency should be a Crown entity where:

its activities are part of the executive government
the activities fall outside the core functions of government, or there are other compelling reasons for them to be performed at arm's length from the Minister
it does not have clear commercial objectives, or it if does, there are other reasons (such as social objectives) which make the State enterprise form inappropriate.

If an entity is a Crown trust or has other distinctive features making Crown entity status unsuitable, it may be categorised as an entity in Schedule 4 of the Public Finance Act 1989. [9.5.3]

When a new public agency is being created, the application to that agency of the Ombudsmen Act 1975, the Official Information Act 1982, and the Local Government Official Information and Meetings Act 1987 should be considered. [Part 6]

There is one exception when the Official Information and Ombudsmen Acts do not apply. This is where the entity's functions are judicial in nature. [9.6.3]

Chapter 10: Delegated legislation

The distinction between primary legislation and delegated legislation is often regarded as the division between principle and detail. This chapter aims to clarify this distinction. [Part 1]

Matters of policy or principle should be included in primary legislation only. These matters may well be controversial. [10.1.3] For example, matters that affect fundamental human rights, change the common law, create serious offences, impose significant penalties, impose taxes, amend Acts or make retrospective changes to the existing law.

Matters that fill in the detail of a legislative scheme or are part of its implementation will usually be included in delegated legislation. [10.1.4] For example, matters that deal with the mechanics of implementing an Act, impose fees, specify forms, provide details of procedures, or provide for indexation.

Some cases will not fit clearly in either category. For example [10.1.5]:

regulations may be appropriate if the legislation is directed at a limited audience or the subject matter is highly technical.
primary legislation may be appropriate if division of material would lead to an incoherent legislative regime.
if the matter is likely to be changed or updated at frequent interval, it may be better to use delegated legislation.
Henry VIII clauses should only be used in exceptional circumstances.

Consideration should be given when providing for delegated legislation as to whether any requirements for notice and consultation or confirmation of the secondary legislation should be included in the provisions delegating legislative powers. [10.2.3]

When deciding who to delegate a legislative power to, consideration should be given to the importance of the power, the relevant expertise of the lawmaker, and the controls over the exercise of the power. [10.3.3]

It is desirable for secondary legislation to be in the form of "traditional" regulations and subject to all the controls set out in Appendix 5. If deemed regulations are to be created, consideration should be given to which controls set out in Appendix 5 should apply. [Part 4]

A sub-delegation should generally be authorised only in special circumstances. If it is authorised in other circumstances, consideration should be given to applying some or all of the controls set out in Appendix 5. [Part 5]

When considering whether to use incorporation by reference, the principles set out in Appendix 4 should be complied with. [Part 6]

Any power of the Government to give policy directions to administrative tribunals should comply with the requirements set out. [Part 7]

Chapter 10A: The exercise of delegated legislative power

Before the power to make delegated legislation is exercised a check should be made to ensure that:

any preconditions have been satisfied and, if appropriate, referred to in the enacting statement. [Part 1]
the proposed delegated legislation is within the power conferred by the empowering provision. [Part 2]
the proposed delegated legislation does not contain a sub-delegation of a legislative power that is not authorised by the empowering provision. [Part 3]
proposed delegated legislation is not inconsistent with any other enactment (especially the Bill of Rights Act) and it is not invalid by reason of repugnancy to any other enactment. [Part 4]
the rights and obligations set out in the proposed delegated legislation are certain and understandable and it is not invalid by reason of uncertainty. [Part 5]
the delegated legislation does not infringe any of the grounds set out in Standing Order 382. For further information concerning Standing Order 382, see the Regulations Review Committee Digest at www.vuw.ac.nz/nzcpl. [Part 6]

Chapter 11: Remedies

When deciding if remedies are required and which remedy is appropriate, the following should be considered [Part 1]:

The nature of the process required for enforcement and, in particular, whether and to what extent the State has a role in enforcement of the legal rules established by the legislation.
Some areas of law involve a mixture of private and public enforcement of the relevant legal rules such as employment law, trade practices law and securities law.
The aptness of the particular remedy to the substantive rules being stated. The statute book presents a great variety of processes and remedies in which the following elements figure [11.1.2]:
- the compulsory availability of the process
- the third party involvement
- the independent character of the third party
- the binding character of the process
- the procedural character of the process
- the criteria for decision.

Consider whether any specialist institution or agency needs to be created to oversee or assist in the enforcement of the legislation. [Part 2]

Consider the criteria set out in chapter 12.2.3 (which concern the use of criminal sanctions). If those criteria indicate that a criminal sanction is not necessary, consider what civil remedies are appropriate.

Consider whether existing civil remedies available under the common law or the statute law are applicable and, if so, whether they are adequate and appropriate for the purposes of enforcement. [11.2.3]

If policy advisers are considering a new remedy or process, it is wise to [11.3.3]-

consult with persons knowledgeable of the process or remedy to ascertain the likely pitfalls
consider whether the proposed process or remedy will create anomalies or inconsistencies in the operation of the law.

The present law on limitation is complex. When considering whether a special limitation period should be established there are several factors which may lead to a shorter or longer limitation period than the standard limitation period of 6 years being more appropriate. [11.4.3]

A complete exemption from any period of limitation is undesirable in principle because it does not acknowledge the desirability of bringing finality to litigation at some point.

Chapter 13: Appeal and review

A right of appeal must be created by statute; judicial review exists independently of statute. When preparing legislation, policy-makers should consider whether to provide a right of appeal and should be aware of the possibility of judicial review. [Background]

Legislation should provide a right of appeal. However, the value of having an appeal right must be balanced against the cost, delay, significance of subject matter, the competence and expertise of the decision-maker at first instance and the need for finality. [Part 1]

A specialist appellate body may be appropriate where legislation deals with non-justiciable matters, when the subject matter is particularly technical or where multiple parties have interests that need to be heard and resolved. [Part 2]

Legislation should provide for appeals to be heard either by a specialist tribunal or a court of general jurisdiction. There are several factors should be taken in to consideration when choosing the appropriate appellate body.

When choosing the type of appeal appeal, rights may be limited to specifically defined issues, usually questions of law or question of fact. Care should be exercised when considering possible limits. [Part 3]

Policy-makers must decide what procedure an appellate body is to follow in hearing appeals. There are four broad types of appellate procedure [Part 4]:

Policy-makers should bear in mind that administrative action is subject to judicial review, which tests the lawfulness of state action. Policy-makers should structure legislation in order to give clear guidance as to the legal limits to which statutory powers are subject. [Part 5]

If a statutory power may significantly affect rights or interests, the statutory scheme must specify the protections that decision-makers must accord to those affected. These fall into two broad categories [Part 6]:

the opportunity to be heard, which will take different forms depending upon the nature of the decision
the rule that a decision-maker be free from bias.

Legislation should not substantively limit the availability of judicial review unless there is a compelling reason to do so. [Part 7]

Careful attention should be given to the composition and character of the body that is being excluded from the ambit of judicial review.

If the decision is made to oust judicial review, then the ouster clause must be drafted with extreme care to be effective. [Substantive restrictions]

Chapter 14: Powers of entry and search

The power to exercise any search or seizure should be clearly stated in the legislation to avoid any doubts as to lawfulness. [Part 1]

Some activities are so invasive and can be so destructive of individual liberty (for example, taking blood samples) that a detailed procedure should be required by the statutory provisions which empower the intrusion.

Powers of entry on to private property should only be conferred if it is essential to achieve a purpose of the Act concerned. [Part 2]

These powers should be expressed plainly and precisely.

A warrant should be required for all searches unless there are compelling reasons to the contrary. General warrants should be avoided.

There are several principles relating to warrants and when they are required which should be considered. [Principles relating to warrants]

Principles relating to searches should also be considered. [Principles relating to searches] This includes:

if the owner or occupier of the place or thing searched is not present then that person should be informed of the search unless a Judge orders otherwise.
persons who have searched a place or thing should provide the owner or occupier with a schedule of any items seized, an indication of the place from where they were taken, and where they are held unless a Judge orders otherwise.

Evidence obtained in breach of the statutory rules of search and seizure should normally be inadmissible.

There are several other principles which relate to all other cases, ie whether or not there is a threshold requirement of reasonable belief that an offence has been committed, which should be considered. [Other principles relating to searches]

If there needs to be deviation from any of these principles, there should be clear and principled reasons for doing so, which should be set out in supporting documentation.

Chapter 15: Privacy and the fair handling of personal information

If proposed legislation deals with the handling of personal information, then it must be considered for compliance with the Privacy Act 1993. There are several triggers that might alert policy advisers to a privacy issue. [Part 1]

Policy advisers developing legislation should strive to develop legislation that is compliant with the Information Privacy Principles (IPPs). [Part 2]

Any inconsistencies with the IPPs should be made as narrow as possible and a full explanation as to why this inconsistency might be necessary should be prepared. [15.2.3]

Policy advisers should note that a register with personal information, which gives the public a right to search, should be created as a public register under Part 7 of the Act. [15.2.5]

Proposed legislation containing a public register should address the following matters:

purposes
include necessary personal information only
search references
control bulk access
other safeguards.

Government data matching programmes must be established in legislation. [15.2.7]

Policy advisers proposing legislation that involves information matching should address the following:

The legislation should state explicitly that personal information will be disclosed for a specific purpose.
The type of personal information to be disclosed should be clearly defined.
Where a generic term is used there should be a further description of what that information includes.

Codes should also be checked for relevance with the proposed legislation and, if so, compliance should be sought. Policy advisers should also consider whether a new code might be an appropriate response to a policy issue. [15.2.9]

If the proposed legislation is to transfer personal information to an overseas organisation, consider the inclusion of additional privacy safeguards. [15.2.11]

Policy advisers should be aware of the role of the Privacy Commissioner in relation to proposed legislation that affects privacy. [15.2.12]

If the legislation has significant effects on privacy and the handling of personal information, consideration should be given to conducting a Privacy Impact Assessment (PIA). Publications offering guidance on how to carry out a PIA are available from the Office of the Privacy Commissioner. [15.2.13]

A key issue under the Official Information Act 1982 is to determine whether it is necessary to withhold information in order to protect an individual's privacy. In making this determination there are several factors that should be taken in to account. [Part 3]

Chapter 16: Cross-border issues

The following cross-border issues often arise, and can raise difficult questions:

The legislation should state the connecting factors if cross-border factors are present. This includes, for example [16.2.1]:

whether certain conduct or events occurred in New Zealand
whether a person is a New Zealand national
whether certain property is situated in New Zealand

An application of New Zealand law to conduct occurring outside New Zealand requires justification. [16.2.3] If New Zealand legislation creates civil rights of action and if cross-border issues are likely, consideration should be given to questions of jurisdiction. [16.3.3]

Proceedings should be capable of being commenced against defendants outside New Zealand, either under the general regimes for service abroad or a special regime in the legislation. It is likely that claims under the legislation will be pursued in overseas courts, the liability regime should be designed to accommodate this. [16.3.3]

The general rules relating to criminal jurisdiction should only be departed from in exceptional cases. [16.4.3] In some cases it may be appropriate to supplement these rules in relation to cross-border assistance in criminal matters with tailored regimes for co-operation in investigation and enforcement activity.

If legislation establishes a regulatory agency, it is important to consider whether the agency is likely to encounter cross-border issues. If it is likely that the agency will need assistance from overseas regulators, appropriate mechanisms should be included in the legislation. [16.5.3]

If New Zealand legislation prescribes regulatory requirements, consideration should be given to providing for recognition or corresponding regimes in other countries. [16.6.3]

If the integrity of a regulatory regime requires the regime to be effective across borders, consideration should be given to the need for a tailored regime for enforcement of orders made by regulatory bodies to prevent breaches, and for criminal sanctions imposed by courts in respect of breaches of the regime. [16.6.3]

The Ministry of Justice and the MFAT Legal Division should be consulted before embarking on the design of a cross-border recognition and enforcement regime. [16.6.3]

Chapter 17: Bills after introduction

Officials should ensure that recommendations in a departmental report or supplementary report assist the select committee in deciding what changes should be made to a Bill. The recommendations should [Part 1]:

be consistent with the Bill's overall policy objectives as agreed to by Cabinet:
be within the scope of the Bill, or of the Act it amends:
conform to the LAC Guidelines, including such matters as conformity to principles in the New Zealand Bill of Rights Act 1990:
have no more than a minor effect on the government's fiscal aggregates or any Vote.

An SOP should conform to the LAC Guidelines for a Bill. [17.2.2]

Always seek advice early as to whether an SOP or other proposed amendment may be out of scope. If it is, consider the following possibilities [Part 3]:

the amendments may have to be part of a later Bill:
it may be possible for the House to give leave for the SOP to be considered without a debate or with a time-limited debate:
the Government may wish to proceed even though leave is not likely to be given.

It is important to be aware of the financial consequences of any proposed amendment, whatever its form or source. [Part 4]

Officials should follow the procedure in the Cabinet Office Circular CO (07) 2. [17.4.3] The main requirements are:

Have processes in place for monitoring developments in the House and select committees affecting your Minster's portfolio, and for identifying proposed amendments which may impact on the government's fiscal aggregates or the composition of a Vote.
Be aware that notice of an amendment can be given the day before it is moved and in some circumstances with less than 24 hours' notice.
Check whether a proposed amendment, if it is passed, will affect any Vote or have more than a minor impact on the government's fiscal aggregates.
If so, alert the portfolio Minister, the Minister of Finance, and the Treasury immediately so that the Treasury can co-ordinate a response and arrange for the issue of a financial veto certificate, if appropriate.

Chapter 18: Alternative dispute resolution clauses in legislation

This chapter outlines when to use alternative dispute resolutions and the processes involved.

In deciding whether there is a need for an alternative dispute resolution (ADR) mechanism the following should be considered [Part 1]:

Whether there is scope for disputes to arise.
The costs associated with the current approach to dispute resolution.
The goals of resolution.

All these matters need to have been considered in order to determine whether it is useful to include an ADR process within the statutory framework to assist with the better realisation of the policy overall. [Summary]

Once it has been established that it is desirable to include an ADR mechanism in the statute, it is necessary to determine which process would be most suitable. [Part 2]

It must be considered whether to use a facilitative, determinative, or evaluative process. [18.2.3]

Policy advisers should be aware of power imbalance issues between parties. Where there is a significant power imbalance or where sensitive interests are at stake it may be necessary to consider what arrangements should be made for the physical security of the parties. [18.2.5]

It is important that if ADR provisions are included in legislation, the statute recognises and incorporates the relevant principles attached to the different processes. [Part 3]

Consider which elements to include in legislation and how the statutory dispute resolution process should be designed. This includes a consideration of whether [Part 4]:

the requirements of the proposed ADR scheme are all workable and appropriate in the particular context
the scheme reflects the fundamental principles underpinning the chosen form of ADR.

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