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:

March 2013

December 2012

October 2012

July 2012

April 2012

December 2011

October 2011

July 2011

Procedure for introducing a Bill

March 2011

December 2010

September 2010

July 2010

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

March 2010

December 2009

March 2009

Transfer of RIA functions to Treasury

October 2008

Changes to Standing Orders

March 2013: Incorporation by reference: Legislation Act 2012

Background

Subpart 2 of Part 3 of the Legislation Act 2012 (the subpart) will, when it comes into force,* generally authorise most instruments made under an Act to give effect to provisions contained in a wide range of documents, without having to set out those provisions in the instruments themselves. That technique is known as incorporation by reference. It has clear attractions, principally in its avoidance of unnecessary duplication. But the technique can, if not properly managed, give rise to problems:

First, the incorporated material may not be readily accessible.
Secondly, it may be unclear whether future changes to the incorporated material are automatically incorporated into the instrument.
Thirdly, the scope for consultation with those affected by the instrument is likely to be curtailed if extraneous material is brought into force without being set out in the instrument.

Application of subpart

The subpart applies to most kinds of subordinate instrument. "Instrument" is widely defined as any instrument that has legislative effect and that is authorised by an enactment, regardless of what it is called (see section 48(1)). The definition specifically mentions regulations, rules, Orders in Council, notices, bylaws, codes, and frameworks. The term framework as a name for an instrument may seem unusual but it is used to describe instruments in the Education Act 1989 (for example, the New Zealand Qualifications Framework) and also in the Accident Compensation Act 2001. The definition of instrument is therefore expansive, but it does exclude bylaws subject to the Bylaws Act 1910.

An instrument may incorporate material by reference in reliance on the subpart unless the empowering Act expressly provides to the contrary. In the absence of such an express exclusion, the subpart may be relied on even if the Act under which the instrument is to be made was enacted before the commencement of the subpart and even if that Act provides for incorporation of material by reference (see section 50). But the subpart does not limit the provisions of other enactments, such as the Standards Act 1988, which authorises the incorporation by reference in regulations or bylaws of standards promulgated by the Standards Council (see section 57).

What may be incorporated

The subpart authorises instruments to incorporate by reference:

a standard, framework, code of practice, recommended practice, or requirement originating from an international organisation or a national organisation, or prescribed in a country or jurisdiction or by any group of countries; or
any other written material that deals with technical matters and that can reasonably be regarded as being too large or impractical to include in, or publish as part of, the instrument.

(see section 49)

Availability of material proposed to be incorporated or incorporated

Material that is proposed to be incorporated by reference in an instrument or that has been incorporated must be made available in accordance with the subpart if the subpart is relied on as authority for the incorporation. The chief executive of the department or other agency promoting the instrument must:

make copies of the material available for inspection and purchase; and
make copies of the material available, free of charge, on an internet site maintained by or on behalf of the department or other agency, unless doing so would infringe copyright.

(see sections 51 and 52)

The chief executive may make copies of the proposed material available in any other way that he or she considers appropriate in the circumstances. This may be particularly appropriate in cases where, because of copyright reasons, the material cannot be freely published on the internet. In cases where there is no impediment to publication on the internet and publication on the internet is accordingly required, that requirement may be complied with by providing a hypertext link.
(see sections 51(2) and 52(3) and (4))

The ways in which the material is made available must be notified in the Gazette when it is proposed to incorporate material in an instrument and also once it has been incorporated in an instrument.
(see sections 51(1)(d) and (2)(b) and 52(2)(d) and (3)(b))

Consultation on proposed incorporation

Before material is incorporated by reference in an instrument, the chief executive of the promoting department or agency must allow a reasonable opportunity for persons to comment on the proposal to incorporate the proposed material and must consider any comments made.
(see section 51(1)(e) and (f))

Certainty of legislative effect of incorporated material

No change to material incorporated in an instrument has any legal effect unless a later instrument incorporates the change in accordance with the subpart.
(see section 53)

An instrument that incorporates material by reference is a disallowable instrument. However, the material itself does not have to be presented to the House of Representatives.
(see sections 56 and 55(2))

Evidentiary matters

The chief executive of the promoting department or agency must retain a copy of any material incorporated by reference in an instrument in reliance on the subpart and must certify it as a correct copy. The production of such a copy is, in the absence of evidence to the contrary, sufficient evidence of the material that has been incorporated in the instrument.
(see section 54)

Comment

The subpart will provide general authority for subordinate legislation to incorporate material by reference and will do this on a principled basis that complies with the principles formulated by the Regulations Review Committee and the Legislation Advisory Committee. It should generally remove the need for separate provisions in Bills authorising incorporation by reference. For that reason alone, it will receive a warm welcome from instructors and drafters alike.

*The subpart, and the other provisions of the Act not yet in force, is likely to come into force in the third quarter of this year.

March 2013: Disallowable instruments

Legislation Act 2012, subpart 1 of Part 3

Key points

The Legislation Act 2012 includes new provisions, to commence on or before 1 July 2014 (but likely to be in the third quarter of this year), on disallowance of items of subordinate legislation that are "disallowable instruments".
The 2012 Act uses separate definitions for (a) publication of "legislative instruments" (in the new LI series replacing the SR series) and (b) disallowance of "disallowable instruments".
The new disallowance provisions replace the Regulations (Disallowance) Act 1989 (under which regulations were disallowed, for the first time ever, at the close of 27 February 2013).
The 2012 Act defines "disallowable instrument" substantively (by reference to legislative effect), which (a) avoids gaps in earlier, more formal, definitions and (b) enhances Regulations Review Committee (RRC) scrutiny.
Related changes will be made to the Standing Orders that define the RRC's functions
Every new empowering provision for regulations or another kind of subordinate legislative instrument needs to make clear that instrument's publication status and disallowance status.
This article introduces the 2012 Act, and summarises the new disallowance regime.

2012 Act combines provisions on legislation

The Legislation Act 2012 got Royal assent on 11 December 2012. On 12 December 2012, some of its provisions came into force, namely: Part 1 (general provisions); subpart 3 of Part 2 (revision); and most of Part 4 (provisions relating to the PCO and the repeal of the Statutes Drafting and Compilation Act 1920). Its other provisions, including subpart 1 of Part 3 (ss 37 to 47) on disallowable instruments, commence on 1 July 2014 or an earlier appointed date.

The Act's purposes include (s 3(a)) to bring together the main provisions of New Zealand legislation on the drafting, publication, and reprinting of legislation, and the disallowing of instruments. The 2012 Act will therefore replace (s 77(2)) the Regulations (Disallowance) Act 1989, under which regulations were disallowed for the first (and perhaps only) time on 28 February 2013: SR 2013/32. The Act implements most of the legislative recommendations made in two Law Commission reports:

Presentation of New Zealand Statute Law (NZLC R104, 2008)
Review of the Statutes Drafting and Compilation Act 1920 (NZLC R107, 2009).

New term: "disallowable instruments"—separate substantive definition strengthens scrutiny

As introduced on 25 June 2010, the Bill for the Act (162—1), in its explanatory note, said a key new defined term was:

"disallowable instrument, which has the meaning given in [section 38]. This term is used primarily in subpart 1 of Part 3 but is also used elsewhere in the Bill. The definition is intended to capture instruments that are [by definition publishable officially as legislative instruments], are expressly stated by an Act to be disallowable instruments, or have a significant legislative effect (within the meaning of [section 39]). Where an existing Act applies the Regulations (Disallowance) Act 1989 to a particular kind of legislative instrument, it is intended that the Schedule of this Bill will update that provision by stating that legislative instruments of that kind are disallowable instruments under subpart 1 of Part 3 of this Bill. So, the definition will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance".

In its 1 December 2010 report on the Bill (162—2), the Regulations Review Committee noted the Bill defines subordinate legislation separately and differently (and so does not continue the former, shared or "multi-purpose" definition of "regulations") for publication and disallowance purposes. The RRC was satisfied that the Bill would broaden the scope of disallowance, especially by covering instruments with "significant legislative effect"; a test that focuses on the substance of delegated legislation rather than its form or description, and reverses the former position that allowed delegated legislation to be excluded from the disallowance regime depending on how it is described.¹

Speaking in the Bill's third reading debate on 5 December 2012, Hon Christopher Finlayson QC, Attorney-General, said: "The bill carries forward the existing regulations disallowance regime to allow Parliament to continue to oversee the use by the executive of delegated lawmaking powers. Very important is that it defines more clearly the nature of the subordinate legislation that will be the subject of the disallowance regime ... This has not always been clear, because some delegated legislation has been excluded from the disallowance regime on the basis of its form, rather than its effect. The bill defines a disallowable instrument to include an instrument that has significant legislative effect-that is, it affects the rights and obligations of the public. This has the effect of broadening the scope of the Regulations Review Committee's jurisdiction and strengthens parliamentary scrutiny of regulations and regulation-making powers."

The RRC's functions under the Standing Orders will be updated (by a Sessional Order effective when the 2012 Act's provisions commence) to reflect the new terminology of "disallowable instruments".²

What is a disallowable instrument? (sections 37 to 40)

Section 38 defines "disallowable instrument". In general, an instrument will be disallowable (under subpart 1 of Part 3) if the instrument:

is by definition publishable officially in the publication series for "Legislative Instruments" (as defined in s 4, and replacing the "Statutory Regulations" or "SR" publication series); or
is disallowable because of the operation of another enactment (for example, an Act may specifically state that an instrument is a disallowable instrument); or
has "a significant legislative effect", as defined in section 39.

Existing Acts that refer to the Regulations (Disallowance) Act 1989 are consequentially amended in the manner indicated by the Schedule so that they state whether or not an instrument is disallowable. So, the "significant legislative effect" test in section 39 will apply where an Act enables subordinate legislation to be made, but is (exceptionally) silent on the question of disallowance.

Section 39 defines significant legislative effect. To qualify under this definition, the effect of the instrument must be:

to create, alter, or remove (or to determine or alter the temporal application of) rights or obligations (as defined broadly by s 37); and
to determine or alter the content (or temporal application of) the law applying to the public or a class of the public.

In applying that test, the following must be disregarded: (a) the description, form, and maker of the instrument; (b) whether one or more of its provisions lapses unless confirmed by Act of Parliament; (c) whether it also contains provisions (for example, explanatory notes) that are administrative.

Section 40 gives some examples of how the temporal application of rights or obligations can be determined or altered. An example is an instrument that appoints a date on which specified statutory rights or obligations come into force. This therefore continues the current law as recognised, for example, in New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 at 164 (CA) (Commercial Radio case), as cited in New Zealand Maori Council v Attorney-General [2012] NZHC 3338 at [115] per Ronald Young J (Water Rights case) and [2013] NZSC 6 at [71].

Sections 38(1)(c), 39, and 40 will need to be applied only if the empowering Act is silent about the status of the instrument for the purpose of disallowance. Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. The RRC regards unfavourably empowering Acts that leave unclear the disallowance status of instruments.

Tabling of legislative instruments and of instruments that Acts state are disallowable

Section 41 requires legislative instruments, and those instruments that are stated by an Act to be disallowable instruments, to be presented to the House of Representatives not later than the 16th sitting day after they are made. It replaces section 4 of the Regulations (Disallowance) Act 1989. Arrangements are in place to ensure that this happens for instruments published by the PCO.³ But material incorporated by reference in a disallowable instrument usually need not be tabled (see, for example, the exception in s 55(2) of the 2012 Act for material incorporated under s 49 of that Act).

How instruments are disallowed

Section 42 provides for actual disallowance by a resolution of the House of Representatives. A member of Parliament would start this process by giving notice of motion to disallow a regulation. Section 42 replaces section 5 of the Regulations (Disallowance) Act 1989.

Section 43 provides for automatic disallowance of an instrument where certain things do not happen within 21 sitting days after a notice of motion to disallow the instrument has been given. This process is activated if, at the end of that period:

the notice of motion has not been withdrawn; or
the motion has not been disposed of in some way by the House; or
Parliament has not been dissolved and has not expired.

Section 43 replaces section 6 of the Regulations (Disallowance) Act 1989.

Effect of disallowance

Section 44 provides that an actual disallowance or automatic disallowance of an instrument under subpart 1 of Part 3 has the same effect as a revocation. It follows that:

the earlier instrument is not revived
a new instrument can be made in the usual way.

Section 44 replaces section 7 of the Regulations (Disallowance) Act 1989.

Section 45 applies where the instrument being disallowed has amended an Act or other instrument, or has repealed an Act or revoked an instrument. In such a case, the earlier enactment is restored or revived. Section 45 replaces section 8 of the Regulations (Disallowance) Act 1989.

Amendment or substitution of instruments by House of Representatives

Section 46 empowers the House of Representatives to amend a disallowable instrument or revoke and replace the instrument. This power was exercised for the first time in 2008 to amend the Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand (see SR 2008/362). Section 46 replaces section 9 of the Regulations (Disallowance) Act 1989.

Notification of disallowance, amendment, or substitution

Section 47 requires any actual or automatic disallowance of a disallowable instrument and any amendment or replacement of an instrument under subpart 1 of Part 3 to be notified by the Clerk of the House of Representatives. The notice is published by the PCO (see, for an example, SR 2013/32). Section 47 replaces section 10 of the Regulations (Disallowance) Act 1989.

Disallowable instruments are a subcategory of "regulations" as defined in Interpretation Act 1999

Section 77(4) ensures that the Interpretation Act 1999 s 29 definition of "regulations" includes "disallowable instruments" (as it did "regulations" under the Regulations (Disallowance) Act 1989). For the purposes of an enactment (including, without limitation, the Interpretation Act 1999), a disallowable instrument is therefore generally both "a regulation" and "an enactment".

Consult PCO on making clear disallowance status of new kinds of subordinate legislation

Empowering Acts should always make clear, by express provision, an instrument's status for publication and disallowance purposes. If an instrument with a significant legislative effect is, for compelling reasons, not to be disallowable, an express provision is required to secure that outcome. The compelling reason may be that the instrument is made by the House of Representatives or is subject to a special affirmative resolution or disallowance regime. (An example is the disallowance regime in the National War Memorial Park (Pukeahu) Empowering Act 2012 ss 32 to 36.) Instructors are both welcome and encouraged to consult PCO on issues relating to disallowable instruments. ⁴

¹ See Ross Carter, Regulations and Other Subordinate Legislative Instruments: Drafting, Publication, Interpretation and Disallowance (Occasional Paper No 20, New Zealand Centre for Public Law, Wellington, 2010): www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/Carter.pdf.

² The changes to the Standing Orders can be seen in the RRC’s 6 April 2011 submission to the Standing Orders Committee on its 2011 Review of Standing Orders. The 2011 Review Report says (at p 48): “We generally support the amendments suggested by the Regulations Review Committee, and recommend that the House provide accordingly through a sessional order, when the Legislation Bill has been enacted and comes into force.”

³ For more information on presentation of instruments not published in the SR or LI series but stated by an Act to be disallowable, see Presentation of papers to the House: Presenting regulations and deemed regulations on the Parliament website.

⁴ See also Ross Carter, Jason McHerron, and Ryan Malone, Subordinate Legislation in New Zealand (forthcoming, LexisNexis NZ Ltd, 2013), Chapter 11 (Disallowance, including amendment by resolution).

March 2013: Subordinate legislation before, and under, the Legislation Act 2012

Before Legislation Act 2012	Under Legislation Act 2012
Drafting: Instruments to be drafted by PCO Statutes Drafting and Compilation Act 1920 s 4(1)(e)	Drafting: Instruments to be drafted by PCO Legislation Act 2012 (LA) s 59(2)—s 59(2)(d) discretion
Incorporation by reference General law Special regimes	Incorporation by reference General law LA 2012 Part 3 subpart 2—“instrument” (ss 48–49) Special regimes
Publication Acts and Regulations Publication Act 1989 (ARPA) “SR series” [Statutory] “Regulations” (ARPA 1989 s 2) Specific status provisions Discretionary publication under ARPA 1989 s 14	Publication LA 2012 “LI series” “Legislative instruments” (LA 2012 s 4) Specific status provisions Discretionary publication under LA 2012 s 14
Tabling Regulations (Disallowance) Act 1989 (RDA) s 4	Tabling LA 2012 s 41
Disallowance “regulations”—RDA 1989 s 2 Specific status provisions	Disallowance “disallowable instruments” (LA 2012 ss 37 to 40) Specific status provisions
Interpretation Interpretation Act 1999 (IA) s 29 “regulations”—para (e)	Interpretation IA 1999 s 29 “regulations”—new para (e)
Revocation of spent instruments ARPA 1989 s 16—“regulations” (s 16(3))	Revocation of spent instruments LA 2012 s 15—“instrument” (s 15(4))

Commencement and effective dates of Legislation Act 2012 provisions

On 12 December 2012 (day after Royal assent date), these provisions commenced: Part 1 (general provisions), subpart 3 of Part 2 (revision Bills), and Part 4 (PCO) except for Part 4 repeals, etc, related to publication, reprints, disallowance, and incorporation by reference
On 1 July 2014 or an earlier date appointed (likely to be in the third quarter of this year), these provisions commence: Subparts 1 and 2 of Part 2 (publication and reprints), Part 3 (subordinate legislation: disallowable instruments and incorporation of material by reference), and related Part 4 repeals, etc
Section 79 lets the SR series run until end of year in which ss 11 and 12(2)(d) commence.

March 2013: New Category 4 for Bills

Please note that a new category has been added to the 2013 Legislation Programme. A new "Category 4: To be passed under extended sitting hours" has been inserted. All Statutes Amendment Bills and all Treaty settlement Bills are listed in Category 4 for 2013.

Previous Categories 4 to 7 have all been moved down one place to be Categories 5 to 8. For example, what used to be Category 4, "To be referred to a select committee in 2013", is now Category 5, and so on.

December 2012: Legislation Act 2012

The Legislation Act 2012, which received Royal assent on 11 December, will improve the presentation and accessibility of our statute law in New Zealand.

The new Act modernises and brings together in one statute the law on drafting, publication, reprinting, and disallowance. This will assist people in finding and understanding the law that applies to them.

The new Act requires the Government to undertake a three-yearly statute revision programme to improve the way our statutes are presented. The Law Commission noted in 2008 the disorderly state of the over 1,100 statutes in force. The new revision powers will enable statute law to be re-enacted in a more accessible form but without changing its substance. Amendments will be incorporated with principal Acts, outdated language modernised, and obsolete provisions removed. These changes will assist individuals and businesses to more easily understand the rules that apply, reducing their regulatory costs.

The new Act defines more clearly the scope of the regulations disallowance regime which allows Parliament to oversee the Government's use of delegated law-making powers. An instrument will be disallowable in future if it has a significant legislative effect, that is, if it affects the rights and obligations of the public.

Technically complex material contained in lengthy documents is commonly incorporated into regulation by cross-reference. Provisions allowing for this are included in individual statutes as required. In future, standard procedural provisions in the new Act may be relied on to incorporate this type of detailed material into regulations made under other Acts. These provisions include important consultation and publication requirements and will avoid unnecessary duplication each time they are needed.

The law relating to the PCO is being modernised to reflect its present-day operations. The PCO will, in future, provide official versions of legislation, free of charge, on the New Zealand Legislation website. This is expected to be available in late 2013.

The new Act is being brought into force in stages. General provisions, provisions relating to the revision programme, and those to modernise the PCO came into force on 12 December. The remaining provisions will be brought into force no later than 1 July 2014, to allow time for necessary changes to be made to the website and to the printed volumes of legislation. In future, regulations will be published by the PCO in a Legislative Instruments series. This will replace the current Statutory Regulations series.

The new Act is based on Law Commission recommendations contained in the Law Commission reports Review of the Statutes Drafting and Compilation Act 1920 and Presentation of New Zealand Statute Law.

December 2012: Submitting bids for the 2013 Legislation Programme

The requirements for submitting bids for the 2013 Legislation Programme are set out in Cabinet Office Circular CO (12) 5. Ministers are asked to arrange for bids to be delivered to the Legislation Coordinator in the Cabinet Office by 10 am on Tuesday 22 January 2013.

This year the circular includes a new section on “Priorities, support arrangements, planning and capacity” (paragraphs 14–19) that strengthens the requirements for project planning a Bill.

It states that for a Bill to be passed in 2013, the PCO will in most cases need to receive the instructions as soon as possible in the first quarter of 2013, and that the Bill will need to be introduced by May. And for a Bill to be introduced in 2013, we will need instructions by the second quarter of 2013.

Note also that between four and six months is the standard time to allow for select committee consideration of a Bill. Any shorter timeframe is now a time-unlimited debatable motion in the House.

In conversations with departments about the Cabinet Office Circular, the PCO is still noticing some prospective bids that appear to be no more than placeholders, in case something might need to be done in a particular area in the future. The project planning for these sorts of bids is naturally often more challenging that for other bids, but still needs to be done if the legislation is to have a chance of meeting its bid timelines and if the legislation programme is to be meaningful

Contact your PCO Drafting Team Manager for help in preparing bids. They can assist with identifying a Bill’s size and complexity and an appropriate timetable.

Proposals for legislation

When proposing legislation, please avoid seeking Cabinet endorsement of particular words or formulations unless you have already discussed them with the PCO. These may need to be altered later on, requiring a Cabinet paper to address the changes. This is usually because the words or formulations endorsed in the proposal may not clearly express the intent of the policy, may be legally uncertain, or may otherwise give rise to difficulties in interpretation.

December 2012: Criminal Procedure Act 2011

The Criminal Procedure Act 2011 (the CPA) is expected to be fully in force by no later than 17 October 2013. A commencement date earlier than this may be appointed by Order in Council. Some selected aspects are already in force (see below).

The CPA:

provides for a new method of categorising offences for procedural purposes (replacing the summary/indictable distinction)
changes the procedure to be used for commencing a criminal proceeding
provides new limitation rules
introduces a formal case management process
provides legislative authority for courts to give defendants sentence indications
abolishes committal hearings but continues to provide for the filing of formal statements and oral evidence orders
rewrites appeal provisions with some substantive changes
replaces the provisions in the Criminal Justice Act 1985 relating to public access and restrictions on reporting
provides for the making of criminal procedure rules
changes some of the terminology used.

Existing criminal procedure provisions replaced by the CPA

The CPA revokes and replaces most of the Summary Proceedings Act 1957 and the provisions in the Crimes Act 1961 about procedure (Part 12) and appeals (Part 13). It also repeals Part 2A of the District Courts Act 1947 (criminal jurisdiction of District Courts in respect of indictable offences).

Categories of offences

Offences are no longer classified as summary or indictable. Instead, an offence will fall into one of four categories (numbered 1 to 4). See section 6 of the CPA. With the exception of offences in category 4 (which are the most serious offences and are listed in a schedule to the CPA), the category of an offence is determined by its penalty.
There will be no need for the offence provision to state the category that an offence is in. For example:
- (old) “A person who [ … ] commits an offence and is liable on summary conviction to [ … ]”
- (new) “A person who [ … ] commits an offence and is liable on conviction to [ … ]”.
The category that an offence is in determines the basic procedure that applies to it. See section 4 of the CPA for an overview.

Infringement offences

Infringement offences proceeded against by the filing of a charging document are category 1 offences. See section 6.
If a court hearing is requested in relation to an infringement offence where an infringement notice was issued, the CPA applies. See section 21(8) of the Summary Proceedings Act 1957 (as to be amended by the Summary Proceedings Amendment Act (No 2) 2011).
Note that the CPA provides that “infringement offence” has the meaning given to it in section 2 of the Summary Proceedings Act 1957. The decisions in Wallace Corporation v Waikato Regional Council, Builders Corner and Total Solutions v Department of Labour, and Down v R have provided that not all infringement offences come within that definition.
Sections 21 and 78B of the Summary Proceedings Act 1957 are still in force. Section 78A (no conviction to be recorded for infringement offence) is repealed and replaced by section 375 of the CPA.

Procedure for commencing criminal proceedings

The CPA continues the current default position that any person may commence a criminal proceeding. See section 15.

Proceedings will be commenced by the filing of a charging document—replacing the laying of an information and filing of an indictment.

Limitation periods for commencing criminal proceedings

The CPA has new rules about limitation periods. See section 25. Many Acts continue to provide different limitation periods.

Case management

Subpart 3 of Part 3 of the CPA provides for a case management process to commence if a defendant charged with a category 2, 3, or 4 offence pleads not guilty. Case management involves the completion of a case management memorandum and in some cases a case review hearing in court.

Sentence indications

A defendant may apply for a sentence indication. This is a statement by the court that, if the defendant were to plead guilty to the offence alleged in the charge or any other specified offence, the court would impose a particular type and quantum of sentence. These provisions came into force on 5 March 2012.

Abolition of the committal stage

There is no longer a step in the proceeding known as committal for trial (also formerly known as preliminary hearings or depositions hearings).

Formal statements will still be required to be filed by the prosecution in any case going to a jury trial (currently a part of the committal process).

Appeals

Part 6 of the CPA carries over most existing criminal appeal rights but rationalises appeals at the lower end. Appeals from Justices of the Peace or Community Magistrates will be heard by a District Court presided over by a District Court Judge. Existing provisions about appeals against existing pre-trial decisions, appeals against conviction, and appeals against sentence are largely carried over (subparts 2 to 4). Appeals against a finding of or sentence for contempt of court, appeals against costs orders, and appeals against suppression orders are revised and dealt with in their own subparts (subparts 5 to 7). Appeals on questions of law will no longer involve a case-stated procedure. New provision is made for the reference by the Solicitor-General of questions of law in criminal matters to the Court of Appeal or the Supreme Court (subpart 11).

Public access and restrictions on reporting

The provisions in subpart 3 of Part 5 of the CPA replace various provisions in the Crimes Act 1961, the Criminal Justice Act 1985, and the Summary Proceedings Act 1957. Beginning with the general rule that proceedings are open to the public, the provisions deal with the closing of the court to the public in certain cases and orders relating to the publication of evidence. The new rules came into force on 5 March 2012.

Rules

The CPA provides for the making of rules about criminal procedure. This process is a Rules Committee process. See section 386. The new rules (which will come into force at the same time as the rest of the CPA) will apply to criminal proceedings in a District Court or the High Court. It is likely that the existing rules governing criminal appeals to the Court of Appeal or the Supreme Court will remain in place and be consequentially amended by separate sets of rules.

Terminology

Charging document filed: A criminal proceeding is commenced by the filing of a charging document, not the laying of an information.
Defendant: A person charged with an offence is called a defendant. The term “accused” is no longer used.
Prosecutor: The person conducting a proceeding against a defendant is called the prosecutor. The term “informant” is no longer used (except in the provisions about infringement offences that remain in the Summary Proceedings Act 1957).
Trial: The substantive hearing of an offence is referred to as the “trial” in all cases. The terms “summary hearing” and “defended hearing” (previously used in legislation or in texts etc in relation to the substantive hearing for a summary offence) are not used. The term “hearing” is widely used in the CPA. It includes a trial, but is wider than that—for example including any pre-trial hearing.
Crime: Although the term “crime” remains in some contexts—for example the Crimes Act 1961—the term to use is “offence”. The definition of “crime” in section 2 of the Crimes Act 1961 is repealed. That definition provided that a crime is “an offence for which the offender may be proceeded against by indictment”.

October 2012: Deemed Regulations

Presentation of Deemed Regulations to the House

All Regulations must be presented to the House not later than the 16th sitting day after the day on which they are made. This requirement includes Deemed Regulations. The agency responsible for the regulations must arrange for the responsible Minister to present them to the House.

Two copies of any Deemed Regulation should be forwarded to the responsible Minister by the agency responsible for its promulgation. The Minister's office should follow the established procedure for the presentation of a non-parliamentary paper. This involves the Minister's office giving the Bills Office the go-ahead to present the Deemed Regulation.

Forty copies must be delivered to the Office of the Clerk (attention the Bills Office) on the morning of the day on which the Deemed Regulation is due to be presented to the House.

However, there is some flexibility about the number of copies required by the Bills Office, particularly for very large documents. The Bills Office encourages agencies to discuss requirements with them-contact Kathy Kelly, Parliamentary Officer (Papers), phone 04 817 9437.

For more about the process for presenting papers to the House, see Presentation of papers to the House »

Keep the PCO informed

Links to Deemed Regulations are now provided through the New Zealand Legislation website.

To keep the links up to date, we contact agencies regularly to check for any changes. But we only contact those agencies that we know make Deemed Regulations. If we are not aware that your agency administers Deemed Regulations, we won't contact you and your Deemed Regulations won't appear on the website.

If you identify any possible gaps or inaccuracies, please let us know. Contact Derek McGuinness, phone 04 817 9129, or Contact us.

More about notifying Deemed Regulations »

October 2012: Table of legislation waiting to be brought into force

A report on enactments not yet commenced by Order in Council was presented to the House on 5 September. These reports were proposed as part of the Government's response to earlier reports from the Regulations Review Committee of the House of Representatives. The report records the intent of the legislation listed, why it has not yet been brought into force, and where possible a timetable for commencement.

View the report "Table of legislation waiting to be brought into force by Order in Council (as at 1 July 2012)" »

The PCO is very grateful to all of you in agencies who assisted with the production of this year's report.

July 2012: Criminal infringement regimes: Ensuring pattern and clarity by instructing on key requirements

In Down v R [2012] NZSC 21 at [36], William Young J's "dispiriting conclusion" was that criminal infringement regimes lack consistent legislative pattern. The Judge also expressed the "view that those responsible for the drafting ... have sometimes lost sight of the Summary Proceedings Act [1957 (the SPA)] provisions". A comprehensive legislative review is, the Judge suggested, warranted.

The PCO has checked its current drafting practice to ensure that it is consistent and effectual in relation to the key points at issue in Down. This check of drafting practice raises, if you are instructing the PCO in respect of criminal infringement regimes, these key requirements:

Ensure proposals to create or vary criminal infringement regimes have been consulted on with the Ministry of Justice, and are covered, fully, by specific policy approvals.
Indicate the intended process for prosecuting the infringement offences, especially if that process departs from the standard SPA infringement offence process (say, if infringement offences are to be prosecutable only by infringement notice, or a special defence is needed).
Indicate the intended penalties for the infringement offences, especially if they depart from the usual pattern of infringement fee or (if a hearing occurs) fine up to a maximum and any other orders, plus prescribed costs (say, if an infringement fee will be the only penalty, or additional consequences, such as demerit points or forfeiture, may or must follow).
The Down case shows some Acts' criminal infringement regimes are "independent", so their offences are not for SPA purposes infringement offences to which the SPA s 21(1)(a) leave requirement and the SPA s 78A bar on convictions apply. If the prosecutor proceeds by laying an information or (after full commencement of the Criminal Procedure Act 2011) filing a charging document, no leave is required for the prosecution, and a conviction and criminal record can be entered and created. So, for an independent infringement offence, whether the prosecutor seeks a conviction and a sentence dependent on a conviction (such as a sentence of imprisonment) is, as Justice McGrath says in Down (at [30]), "entirely a matter of prosecutorial judgment in every case".
Indicate if you propose to create independent infringement offences that, if the prosecutor chooses, can be prosecuted (with or without leave under the SPA s 21(1)(a)) by laying an information or filing a charging document, and that can result in a conviction.
BUT NOTE THAT the Ministry of Justice has indicated that it is strongly opposed to the creation of new independent regimes-which can result in a conviction-pending its review of infringement regimes.
Infringement offences should not be punishable by imprisonment. If imprisonment is an appropriate penalty for serious cases, it can attach to non-infringement offences for the same conduct as is covered and punished (if less serious) by the infringement offences.
Indicate, for any regime (SPA or independent), whether the SPA s 21(1)(a) leave requirement is to apply for an offence prosecuted by laying an information or filing a charging document.

July 2012: Amended Standing Orders: Implications for first reading speeches

In order to ensure that select committees have sufficient time to consider Bills, the Standing Orders now provide that Ministers' instructions to select committees and/or reduced select committee consideration of Bills are debatable motions.

For example, if the Minister in charge of a Bill intends to reduce the amount of time that the committee has to consider the Bill to less than four months, a debate is allowed that is separate from the first reading debate. Members may speak for ten minutes in this debate, which is not time-limited and concludes when no further members seek the call or when a closure motion has been attempted.

It will be necessary to allow sufficient House time for this debate when planning a Bill's timetable.

For more information on first reading debate procedures, see the Cabinet Office circular CO (12) 4.

See also a summary in the October 2011 PCO Quarterly of the changes to Standing Orders that took effect from 21 October 2011.

The Standing Orders of the House of Representatives are available from the Parliament website.

July 2012: Deemed Regulations: Keep PCO informed

Links to Deemed Regulations are now provided through the New Zealand Legislation website.

To view all Deemed Regulations on the website, go to Advanced Search, select Deemed Regulations, and leave the search fields blank—or click here.

Scroll through the list to find the Acts that your Deemed Regulations are made under. Are any Deemed Regulations missing?

If you identify any possible gaps or inaccuracies, please let us know.

July 2012: Available formats: PDF and HTML only

From time to time, drafters are asked by departments to provide draft legislation in Word or similar editable formats.

This isn’t possible, as this is not an output that the drafting and editing system can produce. The data is held and edited in XML, and can be output in either HTML (to be exported to the NZL website, when public) or PDF.

April 2012: Bill of Rights vetting: earlier engagement

Section 7 of the New Zealand Bill of Rights 1990 (NZBORA) requires the Attorney-General to report to the House of Representatives wherever a Bill appears to be inconsistent with that Act. The Ministry of Justice provides advice to the Attorney-General on the consistency of all Bills with NZBORA (except when the Ministry is the instructing department, when Crown Law provides the advice). The Ministry also assists instructing departments to eliminate or mitigate potential human rights problems with draft Bills.

From now on, when the PCO receives drafting instructions for a Bill it will notify the Ministry and provide the contact details for the instructing department. The Ministry will then contact the instructing department to discuss the best way to deal with the Bill, including timing. We hope this will assist instructing departments and the Ministry to ensure human rights issues are addressed and advice to the Attorney-General is as timely as possible.

For more information about NZBORA, see the booklet The Handbook of the New Zealand Bill of Rights Act 1990 (available on request from publications@justice.govt.nz). If you have any questions about the vetting process, feel free to get in touch.

David Crooke
Vetting Co-ordinator
Ministry of Justice
phone 04 494 9912

April 2012: A note about PCO DDIs

All PCO direct dial phone numbers now start with the digits 817. If you have older PCO DDI numbers stored on your phone/contact lists that start with 470 or 471, they will not work after 30 April. To bring them up to date, just replace the first three digits with 817.

December 2011: New access to deemed regulations through the NZL website

The PCO has begun a project to increase the accessibility of deemed regulations, by making them available through the New Zealand Legislation (NZL) website—www.legislation.govt.nz.

How they will appear on the NZL website

Deemed regulations will be discoverable through the NZL website using either search or browse, in a similar way to other legislation.

Then when a user selects a deemed regulation, they'll be taken to a page that confirms the regulation's title, states what agency is responsible for it, and provides a link to the regulation on the agency's website.

Deemed regulations will continue to be located on the responsible agency's website, as at present—what's new will be the link from the NZL website.

What it means for agencies

Early next year we will contact all the agencies that we know administer deemed regulations, asking them to confirm our records and to supply a unique URL (if appropriate) for each of their regulations.

Once the data is loaded, we will contact agencies once a month, as we do at present, asking them to notify us of any changes.

The advantage for agencies is that their deemed regulations will become easier for users to locate. If a user is looking for a particular deemed regulation, he or she will be able to find it through the NZL website without needing to know its status (that it's a deemed regulation, as opposed to any other type of legislation) and without knowing what agency publishes it.

When will the changeover be?

Deemed regulations will become available on the NZL website when the preview website replaces the current NZL website. More on the preview website »

At present, we intend the changeover to occur in the first half of 2012.

What are deemed regulations?

Deemed regulations are instruments that are required to be treated as regulations for the purposes of the Regulations (Disallowance) Act 1989, but are not drafted by the PCO or published in the Statutory Regulations series. They are generally made by Ministers, officials, or organisations.

Some examples: animal welfare codes, civil aviation rules, customs rules, financial reporting standards, food standards, gambling rules, hazardous substances notices, health practitioners notices, land and maritime transport rules, Plumbers, Gasfitters and Drainlayers Board notices, privacy codes, and telecommunications declarations.

How to find them at present

Deemed regulations are currently published on agency websites and elsewhere. This won't change. But a list of deemed regulations is also published on the PCO's corporate website, under the Legislation tab, updated monthly. This will be replaced when the new system comes into operation.

December 2011: Acts that implement international obligations

Parliamentary Counsel Mark Gobbi presented a paper at the International Law Colloquium at the University of Auckland in November this year. The paper will be published as part of the proceedings of the colloquium.

The paper outlines the steps by which New Zealand implements its international obligations, focusing on the part that select committees play in examining international agreements and the legislation to implement them. Acts implementing international agreements form a significant component of New Zealand legislation: nearly 20% of public Acts implement international treaties. See the graph below for when these Acts were enacted.

Number of Acts that implement international agreements, by decade

When an agreement is presented to the House, it is referred to the Foreign Affairs, Defence and Trade Committee (which may in turn refer the agreement to another select committee). The examination that follows focuses on whether the advantages of the agreement outweigh its disadvantages. While no select committee has as yet recommended that the Executive abandon its plans to enter into an international agreement, in 24% of cases the committee has drawn matters to the attention of the House.

Officials prepare a National Interest Analysis that accompanies the agreement. From the drafting perspective, the value of this document lies in the requirement for it to set out the measures needed to implement the agreement. This can provide an overview of the legislative changes that appear to be necessary. It also assists the relevant agency in their preparation of drafting instructions.

The paper goes on to set out the methods and provisions the PCO uses in legislation to implement international agreements. The goal is to produce an Act that identifies the relevant international obligations, and makes the obligations more accessible. Expressly linking an Act with the agreement that it implements also serves to remind those who are later called on to amend the Act that it involves an agreement, and that any proposed amendments should be consistent with the agreement.

If New Zealand enters into an international agreement, it is obliged under international law to comply with it. If national legislation is inconsistent with a binding international obligation, we could be in breach of the relevant agreement, potentially resulting in sanctions and loss of reputation. So we have adopted procedures to avoid these difficulties. The paper concludes that we are in general well served by the treaty-making process. Select committee scrutiny contributes to the legitimacy of New Zealand law, and the standardised drafting techniques contribute to the accessibility of New Zealand law.

October 2011: Standing Orders: Changes to legislative procedures in the next (50th) Parliament

Introduction—House adopts significant package of changes

Review of Standing Orders report of the Standing Orders Committee September 2011

The House agreed on 5 October 2011 a motion to adopt amendments to Standing Orders (SOs) (and sessional orders) recommended by the Standing Orders Committee in its report presented on 27 September 2011 Review of Standing Orders (2011) AJHR I.18B. That report sets out the amendments adopted, which will now be incorporated in reprinted Standing Orders (effective on and after 21 October 2011) available for the next Parliament.

This item outlines the changes to legislative procedures (which take effect at different times) and some related recommendations made to the Government and the House.

Themes of changes adopted

Themes in the package of changes are:

more House time for the Government's legislative programme without using urgency
the Business Committee is to determine many more matters (if through "constructive engagement" it can achieve the "near unanimity" it needs to make its determinations)
improving procedures to scrutinise legislative proposals, and so the quality of legislation.

Changes effective the day after dissolution of the current (49th) Parliament

The Government can, by giving notice the week before, extend either a Tuesday or a Wednesday sitting to include 9 am to 1 pm the following day (ie Wednesday morning or Thursday morning) to do only stages on the Order Paper and without concurrent select committee meetings (unless the Business Committee determines that additional stages may be done, or that select committees will sit concurrently, or both).
The Business Committee may allow an extended sitting on a Thursday evening and Friday morning, and may also arrange more than one extended sitting in a week.
The kinds of permitted omnibus Bills are not to change (except for recognition of revision Bills, and revocation of SO 299, both noted below).
The Business Committee may determine (before or after their introduction) that Bills are cognate Bills that may be taken together in debates, to facilitate the passage of Bills with broad agreement (such as Treaty of Waitangi claims settlement Bills).
Urgency may be accorded to a Bill's first reading despite the Bill not being available to be set down for first reading (to facilitate earlier publication of the Bill).
A Minister, in moving urgency, will have to state circumstances that warrant the claim for urgency (to promote political accountability, not to limit urgency's availability). (This change is discussed in a Radio New Zealand "Insight" documentary on urgency mentioned at www.radionz.co.nz/news/political/87766/tougher-rules-on-parliamentary-urgency-on-the-way and available at www.radionz.co.nz/podcasts/insight.rss.)
When extraordinary urgency is accorded, extended sitting hours will take effect only from the time that the House otherwise would have adjourned on that sitting day (so the ordinary 6 pm to 7.30 pm dinner break applies, not the "urgency" 6 pm to 7 pm break).
The committee confirmed that SO 280(1) as currently worded exempts a Bill from select committee consideration if urgency has been accorded to a stage after its first reading.
The committee reiterates that the Business Committee can already use SO 185(3) to permit a select committee (perhaps authorised to sit during House sittings) to consider (on the basis that a limited select committee process is better than none at all)-
- a Bill that is not, and will not be (because it is being dealt with under urgency), before the select committee
- a Supplementary Order Paper (SOP) that sets out amendments for the committee of the whole House (cwH) to a Bill that is not currently (but has earlier been) before the select committee.
Instructions to select committees are debatable, unless they relate only to the time for reporting on a Bill and provide for the time for reporting on the Bill to be 4-6 months (instructions for shorter report-back periods will thus involve a cost in House time).
The Business Committee may fix the time for a select committee to report on a Bill, and may determine that select committees may meet at times otherwise prevented under SOs.
Select committees examining Bills are urged to programme enough time for the drafting and consideration of recommended amendments to Bills, and for the later drafting and consideration of commentaries on those recommended amendments.
Select committees are by convention (not by SO) expected to consider a PCO report (if the Attorney-General provides the report) on a local, Member's, or private Bill.
The Government is, if practicable, to give notice in the week before of a Bill's cwH stage.
An instruction relating to an SOP or amendment cannot be moved unless the SOP has been printed and circulated to Members, or the amendment has been delivered to the Clerk at the Table.
SO 299 is revoked, so that both a select committee and the cwH may automatically consider and adopt a substantive amendment to an Act not amended by a permitted omnibus Bill as introduced if that substantive amendment is within that omnibus Bill's scope.
A separate expiry clause before Parts is not for SO 293 a defined "preliminary clause".
The Business Committee may arrange a Bill's cwH stage, before or after the Bill is introduced, and may vary such a determination later in the Bill's passage (the ability if the Business Committee agrees to alter the Part-by-Part default for cwH debate for specific Bills before their introduction may improve their structure).
The chairperson of the cwH is empowered to group amendments, and to select amendments on which questions are to be put, where there are amendments at the same place in the Bill that are substantially the same in effect (with decisions to be shown on a published schedule of amendments), but there is no notice requirement for non-financial amendments.
The Business Committee may determine that a Bill be divided without a cwH stage.
The Members' Bills process is adjusted (so it will allow Members to promote and gain support for their proposed Members' Bills before they win the ballot).
The preliminary procedures for private Bills and local Bills are updated.
The "negative resolution procedure" in SO 314 is extended to notices of motion to "revoke" instruments (in light of the Biosecurity Law Reform Bill 256-2 (2010) cl 59 proposal that the Biosecurity Act 1993 s 146 provide for the House to revoke by resolution a declaration of biosecurity emergency-but the affirmative resolution procedure in SO 313 seems not to apply to notices of motions for resolutions to extend such a declaration, because SO 313 applies only to "a regulation, a proposed regulation, or an instruction", and those declarations are arguably more administrative than legislative in character; after all, both the extension and revocation resolutions are published only "as if they were" regulations).

Changes by sessional order to be effective after the Legislation Bill comes into force

A streamlined procedure will be established for enacting revision Bills (no special select committee for revision Bills, which will simply go to relevant existing subject committees, with revision Bills to be a new type of permitted omnibus Bill, but to be amendable only within scope as a revision Bill or with an instruction from the House for an out-of-scope reform or new policy amendment).
The SOs that set out the Regulations Review Committee's functions are to be updated in light of the Legislation Bill's definition of "disallowable instrument".

Other recommendations

The committee recommends that the Government amend Cabinet guidelines so that they require that analysis of Bill of Rights and other constitutional matters be included and given prominence in regulatory impact statements supporting the introduction of Bills, and so that they also require Bill of Rights reporting on substantive (ie not break-up) SOPs.
A further recommendation is that the House refer to a select committee an inquiry into Parliament's legislative response to a national emergency (just to take stock in a calmer atmosphere, because the general sense, says the Standing Orders Committee, is that the Canterbury Earthquake Recovery Act 2011 has been administered appropriately to date). (The Regulations Review Committee's Interim report on the Orders in Council made under the Canterbury Earthquake Response and Recovery Act 2010 and the Canterbury Earthquake Recovery Act 2011 (I.16N) was presented on 5 October 2011.)

Conclusion—changes offer significant opportunities for improvements

Speaking in the adjournment debate on 6 October 2011, the Speaker said: "I really do believe that the new Standing Orders should help this House progress legislation in the future more effectively and in a more measured way, and provide for improved public input and scrutiny of legislation that passes through this House. Undoubtedly, the proposed changes to the Standing Orders will add some new responsibilities for the Business Committee, and I congratulate that committee too on the growing effectiveness that I believe it has exhibited this term."

October 2011: PCO introduces new ways to describe how amendments are made in legislation

See A new approach to describing how amendments are made in legislation

July 2011: Procedure for introducing a Bill

When a Government Bill is ready for introduction, the process is set in motion by the drafter. It is provided here as some useful background for instructors:

The drafter requests that the Bill be printed for the House, and arranges for two copies to be sent to the Leader of the House.

The drafter also sends copies to the Prime Minister's Office, the Minister in charge of the Bill, the Bill of Rights team at the Ministry of Justice, and the instructors.

Under Standing Order 270 [now Standing Order 272], a Government Bill is introduced on a sitting day by the Leader of the House informing the Clerk by 1 pm on that day of the Government's intention to introduce the Bill. One of the Leader of the House's copies is attached to the form advising of the intention to introduce. The Office of the Clerk receives separately the House copies of the Bill, which are embargoed until the introduction of the Bill is announced in the House shortly after it starts sitting.

If the Bill is to be introduced on a working day on which the House is not sitting, then the 1 pm limitation does not apply. However, if the Bill is to be introduced outside of normal working hours, the drafter will have to make special arrangements with the Office of the Clerk.

The Bill will normally be published on the New Zealand Legislation website on the day of introduction.

March 2011: Commonwealth Association of Legislative Counsel

Two of New Zealand's Parliamentary Counsel were elected to roles on the CALC Council at the CALC general meeting, held with the 10th CALC conference in Hyderabad, India, in February this year. CALC's object is to promote cooperation in matters of professional interest among people in the Commonwealth engaged in legislative drafting or in training people in legislative drafting.

Drafting Team Manager Fiona Leonard is now CALC Secretary, and Chief Parliamentary Counsel David Noble is a council member representing Australasia and the Pacific.

The conference's theme was "Legislative Drafting: A Developing Discipline?". This was discussed from the perspective of developed and developing countries, along with such issues as dealing with gaps in policy, multilingual drafting, training for drafters, and new drafting trends. Delegates represented 32 countries including ones from outside the Commonwealth. The New Zealand delegation was led by Fiona Leonard.

March 2011: Review: measuring the quality of legislation

The PCO has undertaken a review of methods it can use for measuring the quality of legislation. The primary aim of the review was to examine the effectiveness of the performance measures that are set out in our Statement of Intent and Information Supporting the Estimates, with a view to improving them where appropriate.

The quality of legislation is difficult to measure because it inevitably depends on the subjective assessment of the users of legislation and influences from a number of actors beyond the PCO (Parliament, etc). For some, this assessment may focus on whether legislation is drafted in plain language and is "user friendly". For others, the assessment focuses on whether it is legally effective and whether it achieves its policy objectives. The working party concluded that no single measure or combination of measures can guarantee high quality legislation. However, they identified ways to enhance the measures the PCO currently uses for reporting on the quality of draft legislation, to give a more accurate result. Some of these relate to quality-assurance methods already used within the office but that aren't currently measured, and others arise from techniques used by overseas drafting offices.

Audit New Zealand considers that the review could provide some useful approaches for other agencies which are working to improve quality measures in relation to legal or other professional outputs. The report is available for downloading in PDF format (327 KB).

December 2010: Regulations Review Committee reports to Parliament on Legislation Bill

The Legislation Bill implements recommendations of the Law Commission following its report into the presentation of New Zealand statute law and its review of Parliamentary Counsel Office legislation. The Bill makes important changes to the law relating to the publication and disallowance of legislation, it updates the law underpinning the Parliamentary Counsel Office, and it contains new provision for a three-yearly programme of statute law revision, or consolidation.

The Bill was introduced into Parliament in June of this year and received its first reading on 3 August. It was referred to the Regulations Review Committee (RRC) for consideration. The Attorney-General gave evidence to the committee in response to the submissions, and officials from the Justice Department and PCO advised the committee. The RRC received nine submissions, and heard evidence from four submitters on 13 October. The committee reported the Bill back to Parliament with amendments on 1 December 2010.

The RRC focuses in its report mainly on two aspects of the Bill: the Parliamentary Counsel Office, and revision. A revision Bill is a Bill that re-enacts the law in a more accessible form but without changing its substance. It might consolidate all of the law on a topic into one Act, repeal obsolete Acts, and update language so that it is in keeping with modern drafting style. The Legislation Bill is silent on the procedure for passing revision Bills into law, which means that they will be subject to the normal House procedures unless specific provision is made for them in Standing Orders. The RRC supported the approach taken in the Bill, but recommends that provision be made in Standing Orders for a streamlined procedure for passing revision Bills.

The Bill currently requires the Chief Parliamentary Counsel to have a legal qualification granted in a common law jurisdiction. The committee has recommended that this provision should be amended so that the Chief Parliamentary Counsel must be a New Zealand-qualified lawyer, or eligible to practise as a lawyer in a specified country. This will ensure that candidates for the position of Chief Parliamentary Counsel are drawn from New Zealand or a similar jurisdiction. However, in those cases (which are likely to be extremely rare) where no suitable candidate can otherwise be found, the Attorney-General will retain the discretion to waive the qualification requirement in a particular case. The RRC makes similar recommendations in relation to parliamentary counsel.

The Legislation Bill now awaits its second reading, which we anticipate will be some time in the new year.

December 2010: Papers published: Commencement clauses, and legislative instruments

The Statute Law Review has recently published a paper by Mark Gobbi, Parliamentary Counsel, entitled “When to begin: A study of commencement clauses with regard to those used in the United Kingdom, Australia, and the United States”.

The paper examines historical and contemporary approaches to when an Act begins, and their consequences, intended and unintended.

The paper, citation details (2010) 31(3) Stat LR 153, is available at slr.oxfordjournals.org/content/31/3/153.full.pdf+html.

[Updated:]The New Zealand Centre for Public Law has published a paper by Ross Carter, Parliamentary Counsel, entitled Regulations and Other Subordinate Legislative Instruments: Drafting, Publication, Interpretation and Disallowance. It examines the laws (past, present, and future) on how New Zealand subordinate legislation may or must be drafted, published, interpreted, and disallowed.

The paper’s citation is: Occasional Paper No 20, New Zealand Centre for Public Law, Wellington, 2010. It is available both in hard copy and at www.victoria.ac.nz/nzcpl/OccPapers.aspx.

September 2010: Canterbury Earthquake Response and Recovery Act 2010

On Tuesday 14 September the House of Representatives, by leave, agreed that the Canterbury Earthquake Response and Recovery Bill be introduced and passed through all stages. The Canterbury Earthquake Response and Recovery Act 2010 (the Act) came into force on Wednesday 15 September

The main purpose of the Act is to facilitate the response to the Canterbury earthquake by central government, local government, and others. To this end, the Act empowers the making of Orders in Council that modify statutory requirements contained in or enacted under other Acts such as the Building Act 2004, the Land Transport Act 1998, the Local Government Act 2002, and the Resource Management Act 1991. Various requirements of these and other Acts may not be capable of being complied with, or complied with fully, owing to the circumstances resulting from the Canterbury earthquake.

The Act also establishes the Canterbury Earthquake Recovery Commission to advise Ministers about the making of any Orders in Council that may be required, and how resources might be prioritised and funding allocated, for the response to the Canterbury earthquake.

The Act confers wide but time-limited powers to make Orders in Council. There are further limitations on these powers. In particular, the authority delegated by Parliament is tied to the purpose of the Act and so the orders themselves can be judicially reviewed. And the Act expressly states that particular Acts, including the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990, cannot be modified by an Order in Council made under the Act.

The Act is modelled on the Epidemic Preparedness Act 2006 and the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010. An interesting historical comparison is of course the Hawke’s Bay Earthquake Act 1931, although that Act was passed nearly three months after the earthquake and is permanent.

The Act will expire on a date specified in an Order in Council that must be no later than 1 April 2012, and Orders in Council made under section 6 of the Act will be revoked then also.

The Act is administered by the Ministry of Economic Development.

An initial suite of five Orders in Council were made by the Governor-General in Council on Thursday 16 September covering aspects of transport, civil defence emergency management, building, resource management, and local government legislation. Three earthquake-related sets of regulations were also made under social security legislation. Further orders are expected and instructing departments should ensure that instructions are provided in good time before the date when the provisions are required.

Links to all legislation enacted and made in response to the Canterbury earthquake are available on the PCO website at www.pco.parliament.govt.nz/pco-news/#earthquake.

September 2010: 1 October GST increase: effect on fees and charges specified in legislation

The GST increase to 15% will not automatically be reflected in fees and charges in published legislation.

The prescribed fees and charges in Acts and regulations set out on the New Zealand Legislation website and contained in printed legislation will not reflect the increase in GST that takes effect on 1 October 2010 (except in the case of changes made specifically by amending legislation that comes into effect on or after 1 October).

The PCO has no mandate to change the affected amounts without formal amendment by new regulations or statutory amendment before 1 October 2010.The general effect of section 78(3) of the Goods and Services Tax Act 1985 is, in general terms, to increase the amount payable for a fee or charge. However, it does not substantively amend all the figures in the legislation that prescribe or determine any fee, charge, or other amount—it merely “deems” them to have been changed. The existing legislation specifying a fee or charge remains, but section 78(3) operates on that legislation, in effect, by operation of law to change the figure by the amount specified, in this case from 12.5% to 15%.

We have published a notice alerting users of legislation of this—on the New Zealand Legislation website, the PCO website, in bookshops selling legislation, and sent to subscribers of printed legislation. The notice recommends that legislation users contact the relevant Government agency to confirm the actual fee or charge payable, and provides a link to the Inland Revenue website.

September 2010: Avoiding discrepancies between commentary and Bill

We have noted a developing trend for any discrepancies between the reported-back version of a Bill and its commentary to be used by interested parties as a reason to press for amendments to the Bill, or later, to the Act.

It is therefore critical for departmental officials to check the commentary carefully before the select committee reports back to the House, and to discuss any discrepancies between commentary and the Bill with the PCO.

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, it must be referred to in the compliance section of the Cabinet paper seeking authorisation to submit an item to the Executive Council.

See CO Notice (12) 2 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: 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.

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.

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 websiteParliament 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.

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