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:
- Editorial by the Chief Parliamentary Counsel
- Wanted: Acts to include in the revision programme
- Concerns that might arise during drafting
- Regulations Review Committee questions
- Timing of instruments to be made by the end of 2013
- Legislative drafting practice making clear new subordinate legislation's status
- New legislative disclosure requirements: see latest information
- Legislation Act 2012: orders and regulations made
- NZ Legislation website label changes from 5 August
- Citing Standards in legislation
- Incorporation by reference: Legislation Act 2012
- Disallowable instruments
- Subordinate legislation before, and under, the Legislation Act 2012
- New Category 4 for Bills
- Criminal infringement regimes: Ensuring pattern and clarity by instructing on key requirements
- Amended Standing Orders: Implications for first reading speeches
By happy coincidence, preparation of this edition of the PCO Quarterly coincided with the delivery to the PCO of the latest edition of Thornton’s Legislative Drafting,1 which was first published in 1970. Less happily, it has also coincided with the PCO returning “instructions” to an instructing agency on the grounds that they were inadequate to enable us to commence drafting. Putting these two events together, I hope that we—instructors and drafters—can ensure that Bill and regulations drafting for the Government in New Zealand can continue to operate at the very high levels I have witnessed since my appointment in 2007. Garth Thornton, himself a New Zealander and a legislative drafter with very wide international legislative drafting experience, recognised the critical role of instructions in his book and the current editor, Professor Xanthaki, with her very deep academic experience in the field, reinforces this.2
To quote from the current edition’s section entitled “how to write drafting instructions”:
"Instructions should be written in narrative form in clear, straightforward language that is as free from jargon and technical language as the substance allows. They should be complete and they should be comprehensive."
Having just returned from a spell in the UK (where very full and comprehensive initial instructions in narrative form are the norm), I was reminded how flexible we are here in taking quite limited (ie not comprehensive) instructions and providing early drafts from which to set off the iterative process. Although I favour this flexible approach where it makes sense, I have noticed an increasing tendency towards short-form instructions. Elsewhere in this edition we notify readers of checklists for instructors highlighted on our website—one of which is the checklist for drafting instructions, which sets out in 13 short bullet points what initial instructions need to cover. I encourage all those in agencies embarking upon instructing us to ensure that they have checked their instructions against that checklist. That way we can all ensure that we produce high quality drafts of legislation that more quickly reach completion and readiness for introduction.
Chief Parliamentary Counsel
27 September 2013
1 5th Edition; Editor—Professor Helen Xanthaki; Bloomsbury Professional Ltd. 2013 ISBN 978 78043 209 0
2 Having spent many hours with her on a coach stuck in traffic between St Petersburg and Moscow last year, we had the opportunity to discuss at length the legislative drafting process in NZ. (But that is another story!)
The Legislation Act 2012 establishes a procedure for the preparation of revision Bills. The purpose of revision is to re-enact, in an up-to-date and accessible form, the law previously contained in one or more Acts. It is not intended to change the effect of a law.
A draft revision programme is now required for each new Parliament. The draft programme will be published and submissions invited on its content.
At this stage, we are looking for appropriate Acts to include in the first revision programme and would welcome any suggestions. The ideal candidate for inclusion would be an Act that is heavily used by the public, whose content is stable, and that is unlikely to be amended in the next Parliament.
If you would like to suggest any Acts that could usefully be part of the revision programme, please contact us.
If you have any concerns relating to the drafting of legislation, for example, timetables, process, service, or relationship issues that you cannot resolve with the drafter, the matter should be referred, in writing, to the relevant PCO Drafting Team Manager. This should be done at the time the matter arises. A copy of the written concerns will be provided to the relevant counsel. The Drafting Team Manager will resolve the matter with you and the counsel, or may refer the matter to the Deputy Chief Parliamentary Counsel or Chief Parliamentary Counsel if resolution is not possible.
See the Guide to Working with the PCO for information on the role of the drafter.
Where the Regulations Review Committee has requested information relating to instruments that they are reviewing, feel free to discuss your response with your Drafting Team Manager. This can be helpful, particularly where questions contain a legal or practice component.
When timetabling Legislative Instruments (regulations) that are to be made by the end of this year, please allow enough time for them to be gazetted in December. It can happen that instruments are approved by Executive Council in December but are not gazetted, and hence not published, until January. This means that they are made (and dated) in one year, but are published in the following year and carry that following year’s SR or LI reference number and year.
January 2014 will see the introduction of the Legislative Instruments series. The last Statutory Regulations will be published in December 2013. So a tidy changeover would be particularly appropriate this year.
See the New Zealand Gazette for publishing deadlines over the break.
Introduction—new drafting practice adopted after review
The PCO has, in connection with the Legislation Act 2012 coming almost fully into force (on 5 August 2013), reviewed its practice for the drafting of (wholly new, or amended) empowering provisions for new subordinate legislation.
A particular focus of that review was making clear the status of instruments for the purposes of publication, disallowance, and tabling. The resulting new drafting practice adopted (with effect on and after 20 August 2013) ensures empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.
Practice adopted relies on, and may describe or modify effect of, applicable default rules
An instrument’s status can be made clear by reliance on applicable default rules, or by express statements (that confirm or modify the effect of applicable default rules). The Legislation Act 2012 envisages that other Acts will confirm or modify its effects.
The practice adopted indicates when empowering provisions do and don’t state (confirm or describe) an instrument’s status. That turns on whether the instrument made is an Order in Council (“traditional regulations”), or a non-Order in Council (“agency regulations”). If the position under the default rules is to be modified, the modification (overriding or departure) must be done by express statement.
The practice adopted balances:
- avoiding declaratory provisions that don’t alter, but only describe, the clear status under applicable default rules of Orders in Council; and
- using declaratory provisions for non-Orders in Council (“agency regulations”), including where declaratory provisions have been required by Government responses to reports of the Regulations Review Committee.
Experience suggests that the Regulations Review Committee may recommend clarifying amendments to empowering provisions that leave unclear the publication, disallowance, and tabling status of non-Order in Council instruments that are legislative in character.
Standard wording (model clauses) giving effect to new practice adopted
The PCO has, to give effect to the practice adopted, also developed standard wording (model clauses). A copy of this wording and these model clauses is below. It indicates briefly and clearly the usual practical outcomes of the practice adopted. This information has also been communicated to the Regulations Review Committee and to others involved with new legislation (for example to the Legislation Advisory Committee).
Ensuring intended outcomes are achieved effectually, clearly, and consistently
Drafting instructions must indicate the intended status of instruments for the purposes of publication, disallowance, and tabling.
PCO counsel will confirm with instructors whether the instrument’s status under the default rules, or a modification of that status, is intended. Then, by following the new drafting practice, PCO counsel will ensure empowering provisions achieve their intended outcomes effectually, and in a way that is clear and more consistent.
When to modify defaults (override or depart from Legislation Act 2012)
Express modifications that ensure that Orders in Council are not a legislative instrument (LI), or not a disallowable instrument, must be required by deliberate policy decisions and clearly justifiable in the light of past practice and relevant principles. Exemptions can be expected to be scrutinised closely by the Regulations Review Committee.
Publication outside the LI series (for example, in full in the Gazette, or via a website, or otherwise in a special way) will more likely be appropriate for non-Orders in Council or “agency regulations”. But the empowering provision for them must always provide for availability (by stating that the instrument is a legislative instrument, or otherwise).
All instruments of a legislative character (ie all those with a significant legislative effect) are, by default, disallowable by virtue of the Legislation Act 2012 section 38(1)(c), unless section 38(2) or (3), or another enactment (section 38(4)), provides otherwise. 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, is a remuneration instrument (see, for example, Governor-General Act 2010 sections 5(5), 6(4), and 8(6)), or is subject to affirmative resolution (see, for example, Dog Control Act 1996 section 78A(3)).
Instructors are both welcome and encouraged to consult PCO on the new drafting practice for making clear new subordinate legislation’s status, including modifying any default status.
|Standard wording for declaring status of subordinate legislation|
|Classification||Wording to use|
|The instrument will come within paragraph (a) of the definition of legislative instrument||Don’t put any statement in the empowering provision about the status of the instrument, unless you have to override the Legislation Act (see below).|
|The instrument does not come within paragraph (a) or (b) of the definition of legislative instrument||
In the absence of instructions to the contrary, use:
Departures from that standard position are:
If the instrument is to be published in the LI series (and will thus come within paragraph (c) of the definition of “legislative instrument”). For that departure the following provision is used:
If the instrument is not to be disallowable, use:
|The instrument comes within paragraph (b) of the definition of legislative instrument||Use model clause 2, unless you have to override the Legislation Act.|
|Overriding the Legislation Act for instruments within paragraph (a) or (b) of the definition of legislative instrument||
If the instrument is not to be disallowable, use:
If the instructions are that the instrument is neither to be published in the LI series, nor to be disallowable, use:
On 10 June 2013, the following orders and regulations were made:
- Legislation Act Commencement Order 2013—bringing the remaining provisions of the Legislation Act 2012 into force on 5 August 2013 (with the exception of minor consequential amendments to the Biosecurity Act 1993)
- Legislation (Publication) Order 2013—authorising the Chief Parliamentary Counsel to print hard copies of legislation on demand
- Legislation (Official Versions) Regulations 2013—specifying the features of official legislation that the Chief Parliamentary Counsel may issue.
All provisions of the Legislation Act 2012 will be in force on or before 5 August 2013 (with the exception of minor consequential amendments to the Biosecurity Act 1993). See the March 2013 PCO Quarterly for more on how the Act affects incorporation by reference and disallowable instruments, and on subordinate legislation before, and under, the Act.
So from 5 August, labels on the New Zealand Legislation website will change. The search and browse category “Regulations” will become “Legislative Instruments”, and “Deemed Regulations” will become “Other Instruments”.
To find Statutory Regulations (ie those instruments made before 5 August), search or browse in the Legislative Instruments category (or, if you prefer, don’t specify a category).
Of course, document names will be unaffected—so, for example, the Fees Regulations 1987 will still be called the Fees Regulations 1987, and the names of any sleepover wages (settlement) orders made after 5 August will follow the same pattern as before.
References to Legislative Instruments will be abbreviated to LI—for example, LI 2014/37, rather than SR 2014/37. However, this change will not take effect until 1 January 2014. To allow a clean changeover in reference numbering, the 2013 Statutory Regulations series will continue until the end of the year and Legislative Instruments made this year will carry an SR number.
It is important that Standards are referenced correctly in legislation. This article provides information on how to achieve this. Standards New Zealand is also always ready to help with further advice or by vetting citations (see end of this article). The article covers Standards as issued by Standards Developing Organisations (SDOs) at both a national level and at an industry sector level.
Why incorporate a Standard by reference? Doing this avoids reproducing the lengthy and often technical information contained in the Standard within the legislation itself. However, if a reference is ambiguous, the advantage is lost and, worse, the intent of the legislation itself can be compromised through challenges around which Standard or which version of a Standard is required.
Citing a New Zealand Standard in an Act or regulation places obligations on the Standards Council of New Zealand. Section 10(4) of the Standards Act 1988 requires that ministerial permission is sought in order to amend, revise, revoke, or replace a cited Standard. Please advise Standards New Zealand when you incorporate by reference, so that they will not be in technical breach of the Act.
References to Standards in legislation should include, as a minimum, the following five components:
Usually the prefix will indicate the issuing body as well as some information about the type of Standard it is, for example:
SNZ HB: Standards New Zealand Handbook
NZS: New Zealand Standard
AS/NZS: joint Australian/New Zealand Standard
AS/NZS ISO: joint Australian/New Zealand adoption of an ISO (International Organization for Standardization) Standard
NZS AS: Australian Standard adopted as a New Zealand Standard
NZS BS: British Standard adopted as a New Zealand Standard
ISO/IEC TR: A Technical Report jointly issued by the ISO and IEC (International Electrotechnical Commission)
Include all applicable part numbers. Examples are:
3604: This indicates Standard number 3604
4407.3.2: This indicates Standard number 4407, Part 3.2
Some SDOs use full stops or periods (.) between number and part number; others use dashes (-). The British Standards Institute (BSI) usually uses a dash between the number and part, and a period between part and subpart (eg BS 1560-3.2).
Be careful not to cite a “generic” number as a means of referencing multiple Standards, unless explanation is given as to interpretation. For example, the only Standards in the AS/NZS 3008 range are:
Here a reference to either AS/NZS 3008 or AS/NZS 3008.1 would be unclear as neither of these prefix/number combinations are actual Standards. AS/NZS 3008.1 by itself is simply a title construct to cover that branch in the subject and to group the Standards that come under it. For the avoidance of doubt, the individual Standards themselves should be referenced.
3. Year of issue
In most cases this is used by SDOs to differentiate between editions. Section 23 of the Standards Act 1988 covers some situations where legislation does not specify the year of issue of a New Zealand Standard. In such cases “any such citation shall (unless the context otherwise requires) be deemed to include and refer to the latest New Zealand standard with that citation (together with any modifications to it) promulgated by the Council before the Act was passed or the regulation or bylaw made” (emphasis added). Empowering legislation may require different interpretations as to which edition is referenced.
In contrast, citing an overseas Standard without specifying the year of issue creates uncertainty about which edition is being referenced, and this should be avoided if possible. However, not all SDOs use a year to indicate edition. Some use edition numbers, or a combination of year and edition number (for example IEC 60974-4 Edition 2.0 2010-08), while others provide only a publication date as the means of clearly identifying editions.
Always accurately quote the full title. Many Standards titles can be very similar to each other. The full title for any given Standard includes, at a minimum, the number title, and the part title if it exists. To use the AS/NZS 3008.1.2 example again, the series title (overall subject) is “Electrical installations—Selection of cables”, and the part title is “Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV—Typical New Zealand conditions”. These two titles should be concatenated to be fully correct: “Electrical installations—Selection of cables—Part 1.2: Cables for alternating voltages up to and including 0.6/1 kV—Typical New Zealand conditions”.
5. Name of issuing organisation
If all the above details are clear and correct it may not be necessary to specify the name of the SDO. However it is desirable to do so, as the prefix itself does not always accurately indicate the SDO that produced the Standard. For instance, both Standards Australia and the Society of British Aerospace Companies (SBAC) have a Standard with the number AS 1162. Because of this, and in the interests of clarity, the citation should include the name of the SDO.
Note that some SDO organisational acronyms do not always match the English translation of the name. For example, ISO is officially the International Organization for Standardization, but is commonly known as the International Standards Organization.
You should also pay attention to the following:
• Issuing authority
In the case of New Zealand Standards, the SDO is Standards New Zealand (SNZ), which operates under the authority of the Standards Council of New Zealand. Standards only become valid documents when approved by the Standards Council. It is the Standards Council that is the subject of the Standards Act 1988.
Consideration needs to be given to future revisions of the cited Standard. Standards are revised on average every seven years. Explicit statements in the legislation explaining the status of later editions of the Standard, or of amendments that might be issued to the Standard, are desirable. Although section 10(4) of the Standards Act 1988 requires the Standards Council to obtain the permission of the relevant Minister before it can revise, amend, or withdraw Standards that are cited in an Act or regulation, overseas SDOs are, of course, not similarly constrained.
It is common for the legislation that authorises the issue of regulations to specify aspects of incorporation by reference, including how subsequent amendments to incorporated instruments should be dealt with. It is useful, however, to keep in mind the level of understanding that readers of regulations will have of matters like subsequent amendments. Being as clear as possible when specifying incorporated material, within the limits of policy objectives, is always beneficial.
Be aware that SDOs may replace (supersede) a Standard with multiple Standards, each potentially with a different number and possibly a slightly different subject matter. As a result, a blanket statement to the effect that the legislation extends to all later versions of the Standard may lose relevance over time.
Always check that the Standard actually exists. Check the prefix, number, year and title. Sometimes a future Standard (in the form of a draft Standard) will be cited. A draft Standard has only a very short lifespan and can be difficult or impossible to obtain once its original purpose is achieved, so the citation must make it clear how the transition from the draft Standard to the published Standard will affect the legislation. Once published, the Standard will very often differ from the draft that preceded it.
Checking the existence and details of the Standard is best done by viewing an original hard copy or through the website of the issuing SDO. Many SDO websites can be accessed through the ISO website links page at www.iso.org/iso/home/about/iso_members.htm.
New Zealand and joint Australian and New Zealand Standards can be checked at www.standards.co.nz by entering the number of the Standard into the search box at the top of the page. Always take note of the status of the Standard. If it has been superseded or withdrawn, you may choose to reference a more recent edition.
Thanks to Craig Radford, Standards Solutions Specialist, Standards New Zealand, for supplying this article.
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.
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))
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)
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. [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]
Legislation Act 2012, subpart 1 of Part 3
- 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". [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]
- 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  3 NZLR 140 at 164 (CA) (Commercial Radio case), as cited in New Zealand Maori Council v Attorney-General  NZHC 3338 at  per Ronald Young J (Water Rights case) and  NZSC 6 at .
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).
|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
|Incorporation by reference
LA 2012 Part 3 subpart 2—“instrument” (ss 48–49)
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
LA 2012 “LI series”
“Legislative instruments” (LA 2012 s 4)
Specific status provisions
Discretionary publication under LA 2012 s 14
Regulations (Disallowance) Act 1989 (RDA) s 4
LA 2012 s 41
“regulations”—RDA 1989 s 2
Specific status provisions
Interpretation Act 1999 (IA) s 29 “regulations”—para (e)
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 [Update: all provisions come into force on 5 August 2013 or before, with the exception of minor consequential amendments to the Biosecurity Act 1993.]
- Section 79 lets the SR series run until end of year in which ss 11 and 12(2)(d) commence.
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.
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).
- 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 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.
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.
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).
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.
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.
- 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”.
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.
July 2012: Criminal infringement regimes: Ensuring pattern and clarity by instructing on key requirements
In Down v R  NZSC 21 at , 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 ), "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.
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.
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 firstname.lastname@example.org). If you have any questions about the vetting process, feel free to get in touch.
Ministry of Justice
phone 04 494 9912
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.
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.
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.