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:

December 2011

October 2011

July 2011

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

December 2011: New format for SOPs coming soon

The PCO's publishing system will soon be able to produce Supplementary Order Papers in a new format—the RT SOP. The new format will make the changes proposed to a Bill easier to understand, by presenting them in context.

An RT SOP is an SOP where the proposed changes that the SOP makes to the Bill are identified using revision tracking markup. Instead of the SOP describing the proposed changes to be made, the changes are shown applied to the Bill. In this an RT SOP is similar to an RT (revision tracked) Bill produced for a select committee.

Initially at least, many SOPs will continue to be produced in the current, non-RT form. RT SOPs are likely to be used when the amendments proposed are complex or extensive. They will have the same status as a "regular" SOP, and they will be published online and in hard copy as usual.

To find them on the New Zealand Legislation website, do the same as for other SOPs—first, you navigate to the relevant Bill. Then find SOPs under "Versions".

December 2011: Bids for places in the 2012 Legislation Programme

While the timetable for the bid process hasn’t yet been finalised, bids for the 2012 Legislation Programme are likely to be required early in the new year. Your Drafting Team Manager at the PCO will be happy to discuss the size, complexity, and timeframe of any prospective Bills.

It is also very useful to keep Team Managers informed about your agency’s intentions relating to legislation for the next six months or so. They will always be glad of a quick heads-up, and to discuss future projects with you.

UPDATE: 2012 Legislation Programme: requirements for submitting bids now available

See Cabinet Office Circular CO (11) 11, available through the Public Sector Intranet and the DPMC website.

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

October 2011: Parliamentary business after 20 October

All parliamentary business, including Bills, will lapse on 20 October 2011 when Parliament is dissolved, but may be reinstated in the next Parliament by a resolution of the House.

To assist the Government in deciding which business will be proposed for reinstatement, departments should advise incoming Ministers of the implications of reinstating or not reinstating particular items of business.

For more information on this and other matters relating to the management of parliamentary business after the dissolution of Parliament, see Cabinet Office Circular CO (11) 04.

July 2011: Reminder: consult the PCO early

It is best if you consult the PCO early in the development of a legislative proposal, before policy papers go to Cabinet for approval. This can help ensure that the papers give enough flexibility for drafting, without locking in a particular legislative approach or phrasing. The danger is that, if there is not enough flexibility for drafting, a further Cabinet paper will be required with recommendations that accurately reflect the contents of the Bill.

We are also happy to estimate the size, complexity, and drafting time of the proposed legislation, and suggest an appropriate vehicle (eg an Act or an amending Act).

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, 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: Update on Statutes Amendment Bills

Statutes Amendment Bill (No 2) introduced

The Statutes Amendment Bill (No 2) was introduced on 22 February. It comprises 20 Parts, with amendments to the following Acts:

Antarctica (Environmental Protection) Act 1994
Charities Act 2005
Citizens Initiated Referenda Act 1993
Civil Defence Emergency Management Act 2002
Companies Act 1993
Crimes Act 1961
Criminal Proceeds (Recovery) Act 2009
Domestic Violence Act 1995
Judicature Act 1908
Limited Partnerships Act 2008
Marriage Act 1955
Mutual Assistance in Criminal Matters Act 1992
New Zealand Railways Corporation Act 1981
New Zealand Superannuation and Retirement Income Act 2001
Public Finance Act 1989
Social Security Act 1964
Sugar Loaf Islands Marine Protected Area Act 1991
Trade Marks Act 2002
Wild Animal Control Act 1977
Wills Act 2007.

The Bill is currently awaiting its first reading, after which it is anticipated that it will be referred to the Government Administration Committee.

Proposals sought for Statutes Amendment Bill (No 3)

The intention is to introduce a Statutes Amendment Bill (No 3) in July this year. Cabinet Office Circular CO (11) 1 outlines the proposed timetable. The circular reminds instructing departments of the criteria that proposals need to satisfy for inclusion in the Bill and outlines the various steps that must be taken before the PCO can begin drafting amendments.

For now, the important dates are:

departments must submit potential items for inclusion in the Bill (as approved by the portfolio Minister) to the Ministry of Justice by Friday 15 April 2011
departments must send drafting instructions to the PCO by Friday 13 May 2011.

Please note that the circular makes it clear that it is now mandatory for departments to contact their PCO Drafting Team Manager to clarify whether potential amendments for inclusion in the Bill are suitable. Please contact us for Drafting Team Managers' contact details.

March 2011: Table of legislation waiting to be brought into force

The second annual report on enactments not yet commenced by Order in Council was tabled in February in the House of Representatives. 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.

The report "Table of legislation waiting to be brought into force (as at 1 January 2011)" was tabled in the House of Representatives on 21 February. The report is available on the PCO website.

In September, the PCO will again be seeking the assistance of departments in the preparation of the 1 January 2012 report on legislation waiting to be brought into force.

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

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, there are three steps that agencies must follow when preparing documentation for consideration by Cabinet and the Executive Council.

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

March 2010: New sessional orders: Members' Bills

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

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

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

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

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

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

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

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

December 2009: 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.

August 2009: Regulations Review Committee Digest: new edition published

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

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

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

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

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

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

Regulations Review Committee

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

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

March 2009: Transfer of regulatory impact analysis functions to Treasury

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

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

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

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

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

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

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

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

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

Supplying RISs to the PCO

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

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

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

October 2008: Changes to Standing Orders

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

Change to three-day stand down rule

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

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

Principal Act clauses

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

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

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

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