PCO Quarterly

The PCO's quarterly newsletter for instructing departments

The PCO Quarterly is intended for anyone involved in instructing the PCO.

To be added to the mailing list, please contact us giving your name, designation, agency, email address, and phone number.

Highlights from the PCO Quarterly:

July 2010

Regulatory impact statements (RISs): see RIS guidance
Latent legislation
Amendment by Government Bills of local and private Acts

March 2010

December 2009

November 2009

August 2009

March 2009

December 2008

October 2008

July 2008

March 2008

July 2010: Latent legislation

We will shortly be sending out letters to departments asking them to check our records of latent legislation yet to be commenced by Order in Council (as at 1 July 2010). Departments will also be asked to provide comment on the likely timing for the commencement of such legislation, any comments on the reasons for delay, and any identified enactments that could be repealed instead of being brought into force.

The resulting information will be presented to the House, and will update the list as at 1 July 2009 published on the PCO website.

July 2010: Amendment by Government Bills of local and private Acts

The Office of the Clerk has recently advised that Government Bills cannot amend local or private Acts unless the changes made are consequential on changes made to Government legislation.

March 2010: Statutory prerequisites for regulations

Some regulations can only be made once a certain statutory condition, or “statutory prerequisite”, has been satisfied. For example, the Act under which the regulations are made may include a requirement that certain organisations in the agriculture sector are consulted with before the regulations are made.

If a statutory prerequisite is identified, there are three steps that agencies must follow when preparing documentation for consideration by Cabinet and the Executive Council.

See CO Notice (10) 1 and the CabGuide section on statutory prerequisites for more information.

March 2010: New sessional orders: Members' Bills

On 17 February, the Leader of the House successfully sought leave for new sessional orders to be adopted:

If a Member postpones the order of the day for their Member’s Bill for a second or subsequent time, on the Members’ Day when the Bill next becomes available for debate, it is set down for first reading after all other orders of the day for the first reading of Members’ Bills. So if a Member postpones their Bill on Members’ Day more than once, the Bill will lose precedence when it is next available for debate.

In addition, the number of orders of the day for the first readings of Members’ Bills that may be before the House at any one time has been increased from four to six.

Sessional orders are available on the Parliament website under Parliamentary business | Rules of the House.

March 2010: Speaker's recent ruling on amendments that are "substantially the same"

Instructing departments may wish to note that during the course of the Committee of the whole House stage of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill the Speaker made a ruling (Hansard 23 February 2010 p 9265) concerning the consideration of a number of amendments which proposed a series of changes to a date specified in the Bill (on this occasion, to the commencement clause). The Speaker reviewed the past practice of the House of Representatives and the advice contained in Erskine May: Parliamentary Practice on when an amendment should be considered to be “substantially the same” as one already voted down (“negatived”).

The Speaker noted that when considering changes of dates there may be a substantial difference between a change of date from one day to the next and so on, and a proposed change of six or twelve months into the future. Nevertheless he ruled in favour of the Chair of the Committee that the series of amendments with varied dates in them were substantially the same as an amendment already negatived.

However, the Speaker went on to suggest that the matter be looked at further by the Standing Orders Committee, noting “I think that what is different in our practice from the practice at Westminster is that at Westminster the Chair can select, from a range of dates, two or three amendments that are substantially different, and test them. Once they are tested, the rest are out. It may be that we should look at something similar. In our procedures in this Parliament, we do not have the ability for the Chair to choose, from a lot of amendments that are very, very similar, some that could be considered to be different. I think it is something I would like to have the Standing Orders Committee look at for the future. As Speaker I am genuinely concerned in the interests of the minority, and that would overcome any concerns about the Chair deciding what might be substantially different, because then the Committee would have decided that, in the matter of two or three amendments that could be voted on in a reasonable space of time, and that would then resolve that matter so that the Chair is not having to make that judgment totally on his or her own. That is what I want the Standing Orders Committee [to] look at.”

December 2009: Government presents its response to Law Commission reports

On 20 November 2009 the Government presented its response to the Law Commission reports “Presentation of New Zealand Statute Law” (the statutes report) and “Review of the Statutes Drafting and Compilation Act 1920” (the 1920 Act report) to the House of Representatives. Because of the links and overlaps between their subject matter, the Government has made a joint response to both reports. (The response can be found on the PCO website.)

The statutes report

In 2006 the Law Commission, in conjunction with the PCO, started work on a project to consider ways to make New Zealand statute law more accessible. The project focused on three issues in particular: availability, navigability, and clarity. In December 2008, the Law Commission’s statutes report was presented to Parliament.

The statutes report is a thorough and detailed examination of the current state of statute law in New Zealand. It considers the improvements in accessibility brought about by the New Zealand Legislation website, as well as current problems with accessing statute law. Its recommendations include proposals for the digital preservation of historical statutes, the development of an electronic and hard copy index of New Zealand legislation, enhanced editorial powers for the PCO when reprinting legislation, and an established programme of statute law revision.

The majority of the recommendations have met with a favourable response from the Government. The PCO has already preserved the most vulnerable statute books of the 19th century (the “shattering statutes”), which can now be consulted on the internet. And it is accepted that the PCO should have enhanced editorial powers when issuing reprints (such as the replacement of gender-specific language). The Government has accepted the recommendation relating to statute law revision, but with some modifications. Finally, the Government does not agree that an index is currently the right solution to the problem of navigability in statute law, and instead proposes to enhance the search and browsing capability of the New Zealand Legislation website.

The 1920 Act report

The Law Commission began work on a review of the Statutes Drafting and Compilation Act 1920 in October 2007. The 1920 Act establishes the PCO as the office with responsibility for drafting and publishing legislation in New Zealand. The report was tabled in the House of Representatives in June 2009. It contains a total of 13 recommendations.

In his introduction to the 1920 Act report, Sir Geoffrey Palmer describes it as a “conservative report”. We are pleased to note that the Law Commission saw no need for radical change in important areas such as the Attorney-General’s control of the PCO and the legal status of the office. The report recommends that the management structures and employment relationships in the PCO should be modernised, and that a statute to replace the 1920 Act should list the functions of the office. The Government accepts the Law Commission’s recommendations, as summarised here.

A new Legislation Act

The Law Commission recommended that there should be a Legislation Act, to implement those recommendations in both reports that require statutory provision, and to combine the provisions of the Acts and Regulations Publication Act 1989, the Regulations (Disallowance) Act 1989, the Interpretation Act 1999, and the 1920 Act. Work has now begun on that project, with the exception of the revision of the Interpretation Act 1999, which the Government does not agree should be revised at this stage.

December 2009: Legal professional privilege and drafting of legislation

An interesting recent decision on the application of legal professional privilege in relation to instructions to Parliamentary Counsel and draft legislation is the decision of the Australian Federal Court in State of New South Wales v Betfair Pty Limited [2009] FCAFC 160.

The decision indicates that provision of a draft by Parliamentary Counsel constitutes, in effect, legal advice and is subject to legal professional privilege.

This is explained in paragraphs 22 and 23 of the judgment:

The draft itself is not the legal advice, but the communication in providing the draft legislation contains implicitly the advice of Parliamentary Counsel endorsing the draft as being effective and valid … It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances.

The decision also indicates that the privilege extends to communications between instructors and experts (or specially constituted committees) with the dominant purpose of formulating instructions to Parliamentary Counsel, and that the privilege is not waived by the circulation of drafts to those experts or committees so long as it is done on the understanding that the matter is confidential.

December 2009: Members’ Bills: a primer

Any Member of Parliament who is not a Minister may seek to introduce a Member’s Bill to the house.

The Member is responsible for arranging the drafting of their Bill, and must have a draft prepared before entry in the ballot. In general, the Legal Services team in the Office of the Clerk (rather than the PCO) will provide drafting assistance with Members’ Bills on request.

Members’ Bills are considered after private and local orders of the day on alternate Wednesdays (Members’ day). No more than four Members’ Bills are allowed on the order paper for first reading at any time. When a place becomes available, a ballot is held if there are more Bills than places available. There can be as many as 40 Bills in the ballot for only one or two places on the order paper.

The ballot is usually held on a Thursday following a Members’ day, or sometimes on the Wednesday of the sitting week before the next Members’ day. The Bills are delivered to the Table Office on the day of the ballot, which is held at noon. The successful Bill is then introduced, usually on the same day as the ballot.

The PCO’s Prepublication Unit works with the Office of the Clerk to print the Bill for the House, and it then uploads the Bill to the New Zealand Legislation website. After introduction it can take up to three days for a Member’s Bill to be published on the web, compared with a few hours for a Government Bill, as there may be much more preliminary work required.

When the House considers Members’ Bills, it gives greater priority to Bills that have made the most progress through the legislative process. On Members’ days, the House also deals with Local and Private Bills before it reaches Members’ Bills. So first readings of Members’ Bills are not always reached, and there can be long periods between ballots.

With the Member’s agreement, their Bill can at any stage be adopted by the Government, when it will then be treated as a Government Bill, leading to involvement by Parliamentary Counsel. This may happen via a request by the select committee to the Attorney-General, who may authorise the provision of drafting assistance by the PCO. The PCO can also be asked to examine a Member’s Bill (again with the approval of the Attorney-General), most likely at select committee stage.

November 2009: Seminar: From policy to legislation

30 September 2009

The Legislative Council Chamber at Parliament House

The Hon Christopher Finlayson, Attorney-General, hosted the seminar entitled "From policy to legislation: developing legislation, and legislation within the parliamentary process" in the Legislative Council Chamber at Parliament House. The seminar was presented jointly by the Legislation Advisory Committee (LAC), the Ministry of Justice, the PCO, and the Office of the Clerk.

This was an opportunity for policy and legal professionals from within the public sector to gain insight into the legislative process from across the constitutional spectrum, with speakers from the judicial, legislative, and executive branches.

Sir Geoffrey Palmer SC, Chair of the LAC, opened the seminar, which was chaired by Law Commissioner George Tanner QC.

Topics included a discussion of why good legislation matters, how to use the LAC Guidelines, how public servants should deal with legislation in Parliament, regulatory impact analysis, the parliamentary process (with focus on select committees and committee of the whole House), and a Member of Parliament's perspective on the select committee process. David Noble, Chief Parliamentary Counsel, and Bill Moore, Deputy Chief Parliamentary Counsel, outlined the PCO's role in the process of turning policy into legislation and how instructor and drafter work together.

Presentations and notes from the seminar are available on the LAC website, alongside the LAC Guidelines. (The LAC Guidelines are also easily accessible from the PCO website—they are linked to from every page under Instructing the PCO.) Also available: information about seminars offered by the Office of the Clerk for public servants and special interest groups.

November 2009: Plain language conference

Sydney, 15–17 October 2009

Four PCO staff members recently attended the seventh biennial conference of the Plain Language Association InterNational (PLAIN), an association of individuals and groups who use or advocate plain language. The conference attracted participants from all over the world, including leading academics and practitioners of plain language writing, and current or former law drafters from Australia, Hong Kong, New Zealand, and the USA.

The central theme of the conference was "Raising the standard"—a reference to PLAIN's goal of establishing a professional infrastructure for plain language practitioners and, in particular, to the need for international standards for plain language. This theme is considered to be particularly relevant as plain language groups make the transition from their early beginnings as a movement campaigning for change to a more cohesive global profession.

Some of the many interesting pieces of information from the conference included the following:

Plain language writing is more than just using particular writing techniques (such as short sentences, active construction, and strong verbs). Rather, it is about using "language and design to present information to its intended readers in a way that gives them a good chance of easily understanding the writer's meaning and of using the document at first reading" (Draft options paper: Professionalising plain language, International Plain Language Working Group, p 5).
A document is in plain language if its readers can:
- find what they need
- understand it
- use it to fulfil their goals.
What plain language is varies according to the audience, so it is important to understand who the audience is.
Good layout and design have just as much of a role to play in the reader's understanding of a document as the written text.

The conference provided many other insights, but perhaps the most important one is that plain language in government communications enhances citizens' participation in the democratic process and, therefore, facilitates and underpins democracy. Indeed, some speakers at the conference consider that plain language in general is a right, and some other speakers have gone further to say it is a basic human right. Interestingly, some countries (eg Sweden and Mexico) have laws or initiatives that require the use of plain language in government communications. A Bill requiring the same has been introduced in the USA and is currently before Congress. South Africa has laws requiring plain language in consumer information.

In New Zealand, a lobby group called Plain English Power has been advocating the introduction and enactment of a Plain Language in Government Communications Bill to promote the use of plain language by public sector agencies. However, the group is no longer following this strategy as it now sees its role instead as that of a plain language watchdog, helper, and adviser.

PCO's commitment to plain language

The PCO is committed to using plain language in New Zealand legislation. One of the PCO's strategic objectives noted in our current Statement of Intent is to provide best practice legislative drafting services. The PCO intends to achieve this by, among other things, using plain language to improve the accessibility of legislation for readers. An important principle of parliamentary democracy is that citizens must know what the law is and have ready access to it in order to comply with it. The PCO will continue to contribute to parliamentary democracy by drafting legislation that is not only legally effective and consistent with the general law and legal principle, but that is also clear and easy to understand.

November 2009: Legislative drafting for Pacific drafters

13–15 October 2009

Participants, Technical Forum on Legislative Drafting for Pacific Islanders

Parliamentary Counsel Fiona Leonard and Richard Wallace attended the Technical Forum on Legislative Drafting for Pacific Drafters in Canberra, Australia, along with representatives from the Cook Islands, Niue, Samoa, Tonga, Vanuatu, the Solomon Islands, Kiribati, the Pacific Islands Forum Secretariat, and the Commonwealth Secretariat.

The forum was funded by the Commonwealth Secretariat, and hosted by the Office of Legislative Drafting and Publishing (which drafts all of Australia's federal subordinate legislation). The forum built on one held two years earlier in Vanuatu, organised by the PCO and sponsored by the Commonwealth Secretariat.

Sessions covered most aspects of legislative drafting, with Fiona presenting a session on common legislative provisions, and Richard presenting one on definitions. Some of the associated discussions highlighted the obstacles our colleagues in the Pacific Islands face in drafting legislation. Their legislative needs are very similar to New Zealand's, but they have either very limited or no drafting resources. In some jurisdictions, their needs centre around training and technical support for drafters, while other jurisdictions have no dedicated drafting capacity at all.

To mention just one source of frustration, small island nations must continually adopt International Conventions that really have no bearing on them, using up resources that are desperately needed elsewhere. For example, one Pacific Island nation recently had to adopt the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons to remove itself from a list of rogue states (such as Iran and Iraq) that hadn't adopted the convention.

August 2009: Cook Islands Public Service Act 2009

Although the PCO's primary focus is the delivery of the Government's legislative programme, we have also provided some assistance to our Pacific Island neighbours to help support and develop their law-drafting capacity. Our latest involvement arose from a request from the Cook Islands Government and its Public Service Commissioner. The PCO, in conjunction with NZAID, provided drafting assistance for the development and passage of a new Cook Islands Public Service Act. Although the Public Service Act 1995–96 (which was based on New Zealand's State Sector Act 1988) had served the Cook Islands well, it was considered that the legislation required updating and stronger provisions to ensure the continued independence of the public service.

Cook Islands Public Service Bill

This involved David Noble and Fiona Leonard visiting the Cook Islands to meet and discuss the proposals with the Cook Islands Public Service Commissioner, departmental officials, Government, members of the Opposition, and other stakeholders in January this year. After receiving instructions, Fiona Leonard prepared a draft and returned to the Cook Islands in July to present the Bill to Cabinet and to explain the Bill to interested parties.

One of the main differences between the 1995–96 Act and the new Public Service Act 2009 is the provision of clear procedures for the appointment of the Public Service Commissioner and heads of government departments. The procedures are designed as far as possible to prevent political influence over such appointments. This protects both the Cook Islands Government from allegations of political favouritism, particularly in relation to appointment of heads of departments, and strengthens the independence of the public service.

Another new feature is the inclusion of provisions setting out the values of the public service and a code of conduct that all public servants and those working for the Cook Islands Government must adhere to. Processes for handling disputes between heads of departments and public service employees have also been clarified.

The Act has now been passed by the Cook Islands Parliament and came into force on 1 August this year. The Honourable Jim Marurai, Prime Minister of the Cook Islands, expressed his gratitude for the work of the PCO to our Prime Minister during his state visit in June. We are pleased to have been able to provide drafting assistance for the project and are grateful for the wonderful hospitality of our Cook Islands colleagues during our in-country visits.

August 2009: Regulations Review Committee Digest: new edition published

The third edition of the Regulations Review Committee Digest has been published on line.

What is it and is there likely to be anything in it for me? Well, if you ever consider issues to do with regulations—or with Bills with delegated legislation-making powers—the Digest very definitely is of relevance to you and we commend it to you as an invaluable resource.

What the Digest does is provide a general overview of the role and functioning of the Regulations Review Committee. It synthesises the committee’s work into a single, readily accessible source. Its main aim is to summarise the committee’s jurisprudence concerning the nine standing order grounds on which the committee may draw regulations to the attention of the House, but it also summarises its jurisprudence on general matters regarding regulations developed in its occasional reports (for example on fees, instruments of exemption in primary legislation, the use of the affirmative resolution procedure, commencement of legislation by order in Council, material incorporated by reference, Henry VIII clauses, and more).

The appendices to the Digest list references to all the committee’s reports of its inquiries into particular regulations (including the standing order grounds considered) and Government responses, as well as all the committee’s occasional reports on general matters and Government responses to those.

The Digest is published by the New Zealand Centre for Public Law with the support of the Office of the Clerk and the PCO, both financial and practical—from the PCO, Parliamentary Counsel Suzanne Giacometti has been involved in providing guidance and feedback. Printed editions of the Digest are available from the New Zealand Centre for Public Law. On line it is available in PDF format, and all chapters except the appendices are available in HTML format (appendices to be added shortly).

The Digest can also be accessed under Further resources at the top of this page.

Regulations Review Committee

This is the select committee established to provide a consistent level of parliamentary scrutiny over delegated regulation-making powers.

It examines all regulations.
A Minister can refer draft regulations to it for consideration.
For Bills before other committees, the committee can consider the Bill’s regulation-making powers, provisions containing delegated powers to make instruments of a legislative character, and any other matters relating to regulations.
It can consider any matter relating to regulations.
It investigates complaints about the operation of regulations.

March 2009: Transfer of regulatory impact analysis functions to Treasury

The Treasury has recently become responsible for New Zealand's regulatory management system, expanding its role into three areas. These are:

Ex ante regulatory impact analysis (RIA). This work was previously undertaken by the Regulatory Impact Analysis Unit in the Ministry of Economic Development, but from 3 November 2008 sits with Treasury's Regulatory Impact Analysis Team (RIAT).
Responsibility for setting a prioritised regulatory review work programme and co-ordinating across government agencies to deliver on this programme.
Strategic coordination of the regulatory quality system, including recommending improvements to the system.

When the Treasury took over the RIA regime, it decided to continue with the current RIA requirements for six months to gain experience with the existing system before looking at changes to the regime. However, the detailed guidance on the RIA requirements has been updated to reflect some operational changes resulting from the transfer from MED to Treasury.

These changes include publication requirements for regulatory impact statements (RISs). RISs relating to Bills should be sent to the Treasury (ria@treasury.govt.nz) at the same time as they are sent to the PCO. RISs relating to regulations should be sent to the Treasury no later than when the regulations are submitted to the Cabinet Office for consideration by the Cabinet Legislation Committee. Detailed guidance can be found on the CabGuide as well as the Treasury's website.

The RIAT is responsible for assessing the adequacy of those RISs for proposals that are likely to have a significant impact on the economy. Departments should consult the RIAT as early as possible in a policy development process that may result in a RIS requiring assessment by the RIAT.

The Government has stated that it considers high quality regulation is important to New Zealand's economic performance and productivity and that it wants to take a different approach to regulation. In particular, it wants higher thresholds in place for new regulatory proposals and it wants to significantly raise the bar on the quality of regulatory decision making. The RIAT is therefore looking at options to strengthen the RIA regime as part of the Government's broader regulatory reform work programme.

Please get in touch if you have any questions about the RIA requirements.

Joanna Smith
Team Leader, Regulatory Impact Analysis Team, The Treasury
phone 04 917 6177

Michele Lloyd
Manager, Regulatory Impact Analysis Team, The Treasury
phone 04 917 6012

Supplying RISs to the PCO

Please ensure that the RIS for a Bill is supplied to the PCO (in Microsoft Word) in sufficient time for it to be included in the copies of the draft Bill that are printed for submission to the Cabinet Legislation Committee. It may not be possible to include non-standard format or non-text material.

The PCO will proofread the RIS, and raise any points of style or grammar with the department if necessary.

If you have any questions about the PCO’s requirements, please contact your PCO Team Leader.

March 2009: LAC Guidelines and seminars

Members of the Legislation Advisory Committee are currently working on updating particular chapters of the LAC Guidelines, including Chapter 12 on criminal offences (which needs to be updated in light of recent case law), Part 6 of Chapter 12 on penalties, and Appendix 4 on incorporation by reference. Material on the use of exemption powers will also be inserted into the guidelines.

The committee has decided to hold more focused seminars this year with particular departments, which will enable critique and discussion of legislative examples relevant to that department’s work. It gives participants the opportunity to discuss and debate the merits of particular proposals and discuss lessons to be learned. The first such seminar, led by Bill Moore from the PCO, Ivan Kwok from the Treasury, and Dr Warren Young, the Deputy President of the Law Commission, was held on 20 February at the Ministry of Health.

March 2009: Policing Act 2008—new terminology

The coming into force of the Policing Act 2008 (on 1 October 2008) has introduced some new terminology regarding references to the Police.

Member of the Police/constable

The practice in legislation for some time (in accordance with the Police Act 1958) when referring to a Police person has been to refer to a “member of the Police”. Under section 6(1) of the Police Act 1958, this form of words meant a sworn member of the Police unless the enactment concerned (or section 6(4) of the Police Act 1958) specifically stated that it included a non-sworn member of the Police.

The term “member of the Police” (when intended to mean a sworn member of the Police) has been replaced by the term “constable” in the language of the Policing Act 2008. So, generally, from now on if you are referring to a Police person in legislation the correct term is “constable”. Under section 117 of the new Act, a reference to “constable” will have the meaning given to that term in section 4 of the new Act. Note that a reference to a constable includes a constable of any level of position (“level of position” being the term in the new Act that replaces the term “rank”).

If the policy in a particular case might require a reference not only to a constable but also to a person whom we would previously have referred to as a non-sworn member of the Police, the legislation should refer to a Police employee within the meaning of that term in section 4 of the new Act. We suggest that you consult the Police in this kind of case.

Authorised officers

The new Act (section 24) provides for a new category of Police employee, namely authorised officer. These people are not constables, but can be authorised by the Commissioner of Police in two ways. The first is an authority to exercise a particular power of a constable under an enactment other than the Policing Act 2008. This did have an equivalent in section 6(2) of the Police Act 1958. The second is an authority to perform a particular “policing role” as set out in Schedule 1 of the new Act. The powers conferred on someone performing a policing role are expressed with reference to the powers of a constable. See Schedule 1 of the new Act.

It will be rare, if ever, that a provision conferring a power on a constable should refer also to an authorised officer. This is because the various kinds of authorised officers get their powers by reference to powers held by constables. However, if your proposed legislation confers a new power on a constable that you think might be intended to be exercised also by an authorised officer in one of the policing roles in Schedule 1 of the Policing Act 2008, you should consult the Police because Schedule 1 of the Policing Act 2008 may need to be amended.

December 2008: Bills from previous Parliament reinstated

On Tuesday 9 December 2008 the House passed the Government’s motion for the reinstatement of parliamentary business that lapsed on the dissolution of the previous Parliament.

All Bills (Government, Private, Local, and Members’) that were previously before the House were reinstated except for the Education Amendment Bill (No 3). All other items of parliamentary business were reinstated except for three interim select committee reports (on the Financial Advisers Bill and the Climate Change (Emissions Trading and Renewable Preference) Bill, which have been passed). Business is reinstated at the stage it had reached when it lapsed. The House has agreed that the reporting deadline for Bills reinstated before select committees will be 30 June 2009.

Ministers and the Cabinet will decide priorities for work to continue on reinstated Bills in accordance with the Government’s Legislation Programme. Please ensure that work on reinstated Bills is reflected in the bids for the 2009 programme.

December 2008: New PCO phone numbers

The PCO has changed its phone numbers. The main office phone numbers are unaffected—still 04 472 9639, and 04 499 1724 for the fax—but all individuals’ DDIs change.

DDIs now start with “817”, replacing the earlier prefixes of 470, 471, and 472. So, for example, 470 6707 becomes 817 6707. The old and new numbers have been working in parallel for some months, but the old numbers will cease to work in the new year.

Please update your records and any automatic dialling arrangements you may have with the new numbers.

October 2008: Choosing fonts for forms and graphics

When sending forms and graphics to the PCO to be reproduced in legislation, please select fonts that can be reproduced by the Legislation System. This will ensure that, if it is important to preserve the look of the original document, this can be achieved.

Please avoid using printer fonts, which are specific to individual printers and may not be valid for other printers or systems.

A list of TrueType fonts that can be accepted by the system, and reliably reproduced, is available in the Client file section of the PCO website.

October 2008: Changes to Standing Orders

The amendments proposed in the Standing Orders Committee’s report Review of Standing Orders were adopted on 11 September, and took effect from 4 October, the day after dissolution of the 48th Parliament. Two areas that may be of particular interest to instructors are highlighted here.

Change to three-day stand down rule

Amendment 29 affects timetabling of Bills introduced in the next Parliament. It amends Standing Order 282 so that a Government Bill introduced on any sitting day is set down for first reading on the next Tuesday on which the House sits.

This is a relaxation of the “three-day stand down rule” for Government Bills introduced on a sitting day. The change doesn’t apply to Members’ Bills, nor private or local Bills. Nor does it apply to Government Bills introduced on working days that are not sitting days. It also doesn’t affect the stand down period for Bills reported back from select committee.

Principal Act clauses

Amendments 22 to 24 relate to principal Act clauses, that is, the clause in an amendment Bill that states the principal Act it amends. The sessional order that brought principal Act clauses within the definition of “preliminary clauses” has been incorporated into the Standing Orders, and Standing Order 256(2) is revoked. In association with the recognition of principal Act clauses, Standing Order 305(2) is amended to provide that an SOP containing a motion to divide a Bill may set out a principal Act clause for any or all of the new Bills.

Note: The 2008 edition of the Standing Orders of the House of Representatives is now available, both on the Parliament website and at Bennetts Bookshops. The new edition incorporates the amendments adopted on 11 September that took effect on 4 October.

Please note that the Standing Orders have been renumbered in the new edition, and so old references to numbers may need updating—for example, Standing Order 277, Bills set down for first reading, was previously Standing Order 282.

October 2008: Recent Regulations Review Committee reports

Copyright and incorporation by reference

The report Further inquiry into material incorporated by reference, presented to the House of Representatives on 12 September, examines questions relating to access to material incorporated by reference, including its availability on the internet, and the copyright interests of third parties in material incorporated by reference.

The committee’s recommendations include that the LAC Guidelines are amended to explicitly alert readers to potential copyright problems in relation to requiring material incorporated by reference be published on the internet, and that model clauses be included in the guidelines.

The committee also recommends that submissions to Cabinet on legislation that proposes to permit incorporation by reference be required to address any copyright issues. The committee also recommends that model clauses from its earlier report “Regulations Review Committee, Inquiry into Material Incorporated by Reference” are enacted in a statute such as the Interpretation Act 1999.

Instruments of exemption in primary legislation

The report Inquiry into the use of instruments of exemption in primary legislation, presented to the House of Representatives on 30 September, explores the principles for the appropriate use of exemption powers and of conditions attached to exemptions.

The report includes key principles and recommendations from the LAC submission to the committee. The committee recommends that these are reflected in the LAC Guidelines, and the Guide to the Cabinet and Cabinet Committee processes where applicable.

Other recommendations include that, where the power to make an exemption is supplemented by a power to impose conditions, the conditions are consistent with the objects of the empowering Act, and no more onerous than the requirements they replace.

The report notes that the test for the application of the Regulations (Disallowance) Act 1989 to an instrument of exemption is determined by the definition of regulation in that Act, which includes any instrument that varies or extends the scope or provisions of an enactment, and that this test is supported by consideration of the legislative character of the instrument of exemption. Both reports are available on the Parliament website.

October 2008: Search and Surveillance Powers Bill

On 17 September 2008, the Search and Surveillance Powers Bill was introduced. At the time of Parliament’s dissolution, the Bill had not yet had its first reading.

The Bill is based on the 300 recommendations in the Law Commission’s report of June 2007, Search and Surveillance Powers (NZLC R97), tabled in Parliament on 7 August 2007. The report called for a consistent and modern approach to the laws governing search, surveillance, and seizure by law enforcement agencies. The Bill’s approach is to bring into a single statute many of the current statutory provisions, but in a way that reflects the Law Commission’s recommendations for an updated approach to the underlying principles.

The Bill comprises 242 clauses in five Parts, and a Schedule. Part 1 contains general provisions. Part 2 sets out some police-only powers. The powers of, and orders available to, enforcement officers are in Part 3. Enforcement officers are constables and those authorised by the Act or an enactment specified in the Schedule to exercise powers of entry, search, or seizure. The Schedule lists the search powers in other enactments to which Part 4 of the Act applies. Part 4 contains general provisions in relation to search and inspection powers, especially how the powers of enforcement officers are to be exercised. Part 5 consists primarily of amendments to some other enactments, so that their current provisions about searches are repealed and the relevant provisions of the new Act will apply instead.

Those who are wanting to create new search, seizure, or surveillance powers should look at the Bill and work out whether to apply its provisions, especially those in Part 4, for that purpose. The Bill will require amendment as it goes through the legislative process because of the Policing Act 2008, which came into force (almost entirely) on 1 October 2008. There is room, too, during that process for adding to the lists of enactments in Part 5 of the Bill and its Schedule, so that the Bill’s provisions, especially those in Part 4, will apply to those enactments.

July 2008: Requests to convert XML documents into MS Word

The PCO has reviewed its occasional practice of providing departments with MS Word versions of legislative drafts prepared in XML (via Epic Editor, the new drafting tool used by the PCO). This is both time consuming for PCO staff and, because of the cutting and pasting required, can produce errors and omissions in the converted document.

In future, if a department requests an electronic copy of a draft, the PCO will be able to provide a PDF but will not produce an MS Word version. From the PDF, instructors can:

copy from the PDF into their preferred format; or
use a PDF editing tool to edit the PDF version.

July 2008: Sunsetting Statutory Regulations

In December 2007 the Regulations Review Committee tabled a report on its" Inquiry into the ongoing requirement for individual regulations and their impact" (the report). The report featured eight recommendations, including the following:

that the committee’s report be referred to the Law Commission for the development of a detailed proposal for the inclusion of a sunsetting system, applicable to all Statutory Regulations, in a statute
statutory provision be made for a sunset system applicable to all Statutory Regulations reflecting the recommendations in the body of the report and any detailed proposal made by the Law Commission.

The Regulations Review Committee broadly agreed with the Legislation Advisory Committee’s submission proposing a system based on a ten-year expiry period, but with a one-year postponement period upon certification by the Attorney-General that this is required. The Legislation Advisory Committee proposed that:

sunsetting apply to all Statutory Regulations initially, and later to all regulatory instruments
sunsetting be included in a Legislation Statute (as proposed in the Law Commission paper Presentation of New Zealand Statute Law)
a sunsetting period of ten years for new regulations and existing regulations be dealt with by staged repeal (that is, set dates for repeal of regulations made before a specified date)
provision be made for rolling over regulations that are not redundant for a further ten years, possibly by certificate of the Attorney-General
there be a Cabinet-directed requirement for ongoing departmental review, led by MED (to ensure ongoing review and not just review every ten years)
the PCO administer the sunsetting system (providing, in particular, departmental liaison).

The Government’s response to the Regulations Review Committee recommendations, which was tabled on 7 March 2008, was that:

The Government considers that further work is necessary to evaluate the Committee’s recommendations before any decisions are made on a sunsetting system. The Government has directed the Ministry of Justice, in consultation with Parliamentary Counsel Office and other government departments as appropriate (in particular those departments with responsibility for a significant number of statutory regulations), and in collaboration with the Law Commission, to provide further advice to Cabinet by 31 December 2008 on:

The inclusion of a sunsetting system, applicable to all statutory regulations, in a statute; and

The implications of such a system on departmental resources and Parliamentary Counsel Office law drafting resources.

An inter-departmental working group (including the PCO) has been formed to assist the Ministry of Justice to report back to Cabinet by 31 December 2008 and is currently preparing a discussion paper on the subject of the sun-setting of regulations.

July 2008: PCO submission to the Standing Orders Committee

The PCO sent a submission to the Standing Orders Committee on 16 June with 11 recommendations for improvements to the Bill-handling procedures of the House.

In particular, the PCO supported and reiterated the observation (No 22) made by the Legislation Advisory Committee in its October 2006 submission, that a refocusing of Committee of the whole House debates (SO 298) "would remove the pressures to structure Bills, artificially, in as few parts as possible (so making them less readable) to facilitate their passage through committee [of the whole stage]".

It is the PCO’s contention that this single change would enhance Parliamentary consideration of Bills and make for better structured statutes, and statutes that are more useable for those affected by the legislation.

The submission also recommended a change to SO 287 to make it clearer that a select committee may recommend that the Bill be, or not be, passed, or that it be determined by a personal vote and may recommend amendments to the Bill.

March 2008: The use of wiki-statutes

As part of the review of the legislative basis for policing in New Zealand, the review team employed a wiki "Policing Act 2008" (launched in September 2007) as one method of involving the public. This is a web-based format which has been used and developed particularly through the Wikipedia websites. The essence of the "wiki" approach is that it provides a collaborative open format that enables visitors to write and edit content at will. It is important, in the context of the policing review, that this website was only one of the many ways in which the review sought to engage with stakeholders and the wider public, and occurred relatively late in the history of the review process.

This mode of communication has some significant limitations, as those responsible for the Wikipedia site indicate. Since the system works by "overwriting", that is, a later contribution overrides an earlier contribution on the same subject, it can lead to perverse content and a lack of coherence or consistency of content and style at any particular time. As those responsible for administering the Wikipedia site note, it also requires active website management:

In particular … articles … frequently contain significant misinformation, unencyclopedic content, or vandalism. Users need to be aware of this to obtain valid information and avoid misinformation that has been recently added and not yet removed. (source: http://en.wikipedia.org/wiki/Wikipedia:About)

Indeed, reading the Wiki Policing Act 2008 site from England prior to taking up my post here in November 2007, I and my parliamentary drafting colleagues in London were "intrigued" by some of the interpretation provisions appearing under the headings of "Commissioner" and "Deputy Commissioner" of police. Some were clearly awaiting "moderation" by those responsible for managing the website!

This slightly lighthearted comment does reveal a serious shortcoming of the wiki approach: for a participant in an official consultation process it is important to know that participation is meaningful and that contributions will not simply be "lost" in an active overwritten format.

More significantly, however, from a legislative drafting standpoint it is important that the wiki-Act (or preferably wiki-Bill) model does not appear too soon in a consultation exercise, is not seen in any way as determinative of content and style, and is carefully managed. Taking these in turn:

First, since the wiki-Bill approach already provides an approximation of a legislative framework for contributors to amend, if used too early in the process it risks constraining public consultation on policy options within the necessarily constricted and precise format required by legislation. This means that non-statutory options and general discussions about principles and policy can be unintentionally excluded or constrained—after all, not everyone thinks and writes with the precision required of a legislative drafter!

Secondly, contributors cannot be expected to know and work within the legal, procedural, and policy constraints that apply when the Parliamentary Counsel Office draft Bills, notwithstanding that our website provides access to, among other guidance documents, the important Legislation Advisory Committee Guidelines on Process and Content of Legislation. It is crucial therefore that administrators of wiki-Bill sites make it clear that drafting of any government Bill that might follow decisions made by Cabinet will not necessarily reflect any of the content and style in the wiki-Bill. An exposure draft of a government Bill remains the appropriate mode for releasing draft legislation for public consultation, and the wiki-Bill should not be seen as an alternative.

Thirdly, careful management is required, not only to take down offensive content but also to record, in a useful way, the many different (and often conflicting) contributions to ensure that the participation process is truly recorded. Inevitably, ending with a "final" wiki-Bill version involves considerable editorial control being exercised by those running the process, and providing that version to a select committee without the other contributions could be misleading.

As the media release for the Policing Act wiki noted: "Launching a wiki version of a statute is a novel move, but one we hope will yeild [sic] a range of views from people interested in having a direct say on the shape of a new Policing Act."

What might be equally novel, and arguably more useful in policy formulation terms, would be to use a "wiki-policy-issues paper" early on in the policy formulation process rather than a wiki-Bill after policy work has already occurred.

I should be very grateful if departments could consult the PCO if they are considering launching a wiki-Bill as part of their public consultation process.

David Noble
Chief Parliamentary Counsel

March 2008: Legislation Design Committee—issues arising in 2007

The function of the Legislation Design Committee (LDC) is to advise and assist departments in the development and design of legislation and in other issues relating to instrument choice, preferably at an early stage of policy development. It meets as often as required, often monthly.

Departments are encouraged to refer draft legislative proposals to the LDC where they:

are significant in terms of their scope
involve complicated legislative design issues
require an innovative approach
are likely to raise issues about the overall coherence of the statute book.

In its first year of operation, the LDC examined and commented on more than a dozen separate legislative matters. These matters covered a diverse range of subjects, such as affordable housing, emissions trading, food, immigration, major events marketing, and public health. Some of the legislative issues and questions that arose in the LDC’s work last year are mentioned below.

Design

Design is likely to be an issue with large pieces of new legislation. Put yourself in the position of someone affected by the legislation (such as the owner of a fish and chip shop), and try to navigate your way around the provisions that affect you. Can you identify whether the legislation applies to you in particular circumstances, your obligations and rights, who administers and enforces the legislation, and penalties for non-compliance?

Design can also be an issue with amending legislation. How does the amendment fit with the principal legislation? Should there be re-enactment of the principal statute, including the amendments, to ensure that the law is accessible and intelligible to the public?

Key definitions

Clear and effective definitions are critical to the success of legislation. Often it is the definitions that determine whether the legislation applies to a person or to particular circumstances. Do the definitions actually define the terms concerned or do they rely on some person or authority (such as the Governor-General in Council) to perform that function?

Relationship to existing law

Does the legislation make use of existing law? For example, if the legislation deals with activities that have an environmental impact, are the mechanisms in the Resource Management Act 1991 to apply or are new mechanisms invented?

Functions

Who is to carry out functions under the legislation? If persons are to be appointed to offices under the legislation, who appoints them? Are the various offices to be within or outside the public service?

Appeals and reviews

Are the appeals and reviews under the legislation to be heard by a person or body who is neutral and independent? If an entity such as a board is to hear the appeal or review, why is that entity more appropriate than a court? Similarly, if the legislation provides for the chief executive of a department to hear appeals or reviews against decisions of his or her own delegates, is this appropriate?

Offences and penalties

The LDC has seen a broad range of offences and penalties in the proposals that have come before it, including civil penalty regimes. Offences and penalties should be consistent with the New Zealand Bill of Rights Act 1990 and be reasonable. The choice and appropriateness of offences and penalties, and of enforcement mechanisms generally, will be of interest to the LDC.

Regulations and incorporation by reference

What does the legislation leave to be done by regulations? Will draft regulations be available to the LDC? If material is to be incorporated by reference, do the relevant provisions follow the Legislation Advisory Committee’s standard clauses on incorporation by reference?

Legal risk to the Crown?

Does the legislation place any legal risk on the Crown? If so, what is the nature of the risk? There will be particular interest in any litigation risk to the Crown that could arise from the legislation.

March 2008: Legislation Advisory Committee—issues arising in 2007

The Legislation Advisory Committee (LAC) meets on a monthly basis. A regular agenda item is the scrutiny of all recently introduced Government Bills. Reports are prepared for the LAC that assess whether those Bills comply with the LAC Guidelines, and the committee may decide to make formal submissions on those Bills or invite officials to attend to discuss any public law concerns or issues raised by members.

Some common themes coming out of discussions of recent Bills include the following:

A strong preference for new Acts instead of substantial amending legislation. Where the amending legislation is more than half the length of the primary legislation, it is likely that a preference for rewriting the legislation will be expressed by the committee.
A preference for matters affecting court procedure (particularly civil procedure) to be left to rules of court, and that any appeal provisions be consistent with and rely on the relevant provisions and procedures in the District Courts Act 1947, the Judicature Act 1908, and the associated rules of court.
A dislike of legislation that gives administrators or courts a menu of options/remedies, which confers a great deal of discretion as to what type of remedy is pursued. A more prescriptive approach is preferred that spells out in more detail either rules or guidance as to when particular options may be exercised, according to the seriousness of the conduct or other criteria, and that clearly spells out the interrelationship between civil and criminal remedies.
A suspicion of provisions that enable an Order in Council to vary, add to, or override primary legislation. However, there is some acceptance of sunsetted transitional regulation-making powers and the use of Orders in Council to vary technical lists in schedules.
A dislike of provisions that appear provisional in character (eg broad regulation-making powers conferred because "we are not really sure what we want to achieve at this point but we need to do something in a hurry").
A suspicion of provisions that allow exemptions from obligations under primary legislation, particularly when the power to exempt is broad or is not qualified by conditions or criteria, or the criteria are vague. Such provisions may indicate that the legislation is provisional in character, and has not adequately been thought through in sufficient detail.

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