Guide to Working with the PCO
Edition 3.5.1, last updated July 2012
The Guide to Working with the PCO is also available as a PDF (604KB)
I am delighted to introduce the third edition of this guide. The purpose of the guide is to help departments provide full instructions for the drafting of legislation to the Parliamentary Counsel Office (PCO). Instructors and drafters perform an important role in the process of translating policy decisions by Government into effective, principled, and clear legislation. Well drafted, high quality legislation is the result of a team effort between instructors and drafters. A good working relationship is essential, and a sound understanding of the process and our role in that process helps to build that relationship.
This guide outlines what can be expected from the PCO and what we need from instructors. I hope that this guide helps to make the relationship between instructors and drafters as productive, efficient, and effective as possible in assisting the Government in delivering its legislative programme.
1.2 About the PCO
The PCO has two roles: providing law drafting services to the Government and providing access to legislation. This guide is concerned with law drafting.
We are responsible for drafting all Government Bills except those drafted by the IRD. We also examine and provide drafting assistance on local Bills and private Bills, and, when directed to do so by the Attorney-General, provide drafting assistance with Members' Bills. We also draft all Statutory Regulations and some other delegated legislation.
The drafters are organised into four teams under the overall leadership of a Deputy Chief Parliamentary Counsel. Each team tends to work with a specific group of instructing government departments although there is some sharing of workload between teams. The manager of the team responsible for your department (your "Drafting Team Manager") will often be your first point of contact with the PCO. The Drafting Team Managers' contact details are given in section 6.4, along with other contact points in the office.
More information about the PCO is available on our website (www.pco.parliament.govt.nz).
1.3 About this guide
This publication is a guide to the usual processes of instructing and drafting: it does not cover all situations, nor does it set down rigid rules. On occasion, instructors and drafters may agree to vary some of the usual procedures.
Section 2 ("Preparing instructions") and section 3 ("The drafts") apply to the development of both Bills and regulations. Bills and regulations are then treated separately, in sections 4 and 5 respectively. Section 6 is a collection of reference materials. The final section is the glossary and index, explaining (and locating) many of the terms used in this guide. The final chart gives an overview of how instructions become an Act.
1.4 Other resources
We have other resources to offer instructing departments and officials:
- We arrange seminars for departments (contact your Drafting Team Manager in the first instance).
- Our newsletter for instructing departments, the PCO Quarterly, gives you updated information on resources for instructors, discussion of drafting issues, and PCO news (contact the PCO's Communications Adviser to join our mailing list).
- The New Zealand Legislation website (www.legislation.govt.nz) provides unofficial copies of Acts and Statutory Regulations, Bills and SOPs, and links to Deemed Regulations. Web feeds gives access to the latest updates. We are in the process of "officialising" the legislation on the website as a first step towards it becoming an official source of New Zealand legislation.
- The PCO website (www.pco.parliament.govt.nz) links to databases of legislation, both New Zealand and overseas, gives information on types of legislation (including reprints) and how to access them, and includes Instructing the PCO, a section that provides further help for instructing departments.
I am keen to continue to improve the PCO's communications with instructing departments, and for that we need to hear from you. Please feel free to get in touch with the Communications Adviser or me with any suggestions for improvements. Contact details are given in section 6.4. Thank you.
Chief Parliamentary Counsel
2 PREPARING INSTRUCTIONS
Instructions are your way of telling us what the Government's policy objectives are and how the law needs to be changed to achieve them.
The preparation of instructions is one link in a chain of events that culminates in new legislation. The PCO usually becomes involved one stage earlier, with the proposal for legislation.
2.1 First steps
2.1.1 Proposals for legislation
Consult your Drafting Team Manager (see section 6.4) before submitting a paper to Cabinet or a Cabinet committee that seeks approval for issuing drafting instructions (see form CAB100 in the CabGuide—details are given in section 6.2 and the glossary).
You are welcome to consult us earlier if you wish. At the policy development stage, or for the annual legislation programme bid, we can help estimate the size, complexity, and drafting time of the proposed legislation, and suggest an appropriate vehicle (eg Act or amending Act).
If a drafting job is urgent, your Drafting Team Manager may need to reallocate and reprioritise work within the team, and so will need as much advance warning as possible.
When preparing a proposal for legislation, it is important that you discuss questions of timing with us (how long drafting will take, dates for introduction, and, if there is to be a delay, the time of its coming into force). You should avoid seeking Cabinet endorsement of particular words or formulations in your submission (unless you have already discussed them with the PCO), otherwise these may need to be altered later on. Departmental drafts (see section 2.4) and drafting instructions should not be attached to your submission. The submission should simply seek approval for the relevant policy and for drafting instructions to be issued to the PCO.
If you are not a legal adviser, you should involve your department's legal advisers throughout the development of your legislative proposal. Do not wait until the policy is settled. Early legal input can:
- clarify the legal issues
- establish whether the options being considered conflict with legal principle
- identify which parts of the policy may not need to be enacted in legislation.
2.1.2 Which department instructs?
Before starting on your instructions, check that you are the right department to provide them. The department responsible for administering the legislation is usually the one to instruct the PCO. If another department's legislation will be affected, consult with them before preparing the instructions.
If multiple departments are to be involved in instructing the PCO, clarify which one will take the principal instructing role and how each department's input on PCO drafts will be coordinated and channelled to the PCO.
2.2 The instructor's role
As principal instructor, you will be the drafter's primary point of contact with your department. You need to be able to answer most of the questions that come up during drafting, and to have a clear understanding of the proposed legislation.
The role of the instructor is to translate policy into drafting instructions. This requires a thorough understanding of:
- the current legal position, and how the proposed legislation will change it
- how the proposed legislation will implement the policy.
2.3 The instructions
It is often useful to discuss your instructions with your Drafting Team Manager while you are still working on them. This can help you clarify what is required and work through any difficulties. If you are considering engaging outside consultants on the preparation of instructions, discuss this with your Drafting Team Manager.
2.3.1 The narrative
Your instructions should:
- describe the proposal's objectives (this Bill will do A)
- spell out the reasons for the proposal (it will solve problem B; present law falls short because of C)
- identify the basic people and activities involved (this Bill will affect or is related to persons/agencies/situations D and E)
- describe what should be in the Bill (we intend to do A by amending Act F in the following ways)
- explain how the proposed legislation will fit into existing law (Act G already covers H, and the proposed Act will cover I)
- explain what will need to be done to make the transition from the existing law to the law as it will be: transitional and savings arrangements (existing licences under J Act become permits under the new Act; people will have K years to conform to the new law)
- explain what changes will be needed to other legislation: consequential and related matters (the L Act must be amended; M penalties will be needed).
Note that the transitional and savings arrangements can be a difficult area to provide instructions on. You should consider them early on in the process of writing instructions. You may also wish to discuss them with your Drafting Team Manager.
Your focus should primarily be on the intended objective, rather than on the words that may be used. "Sacred phrases" or set forms of words can become a liability, holding the drafter back from finding better alternatives.
It is useful to include in your instructions specific references to the relevant decisions of Cabinet committees.
You should also include:
- an idea of the expected timeline for your proposal
- an idea of when any further instructions will come (if all are not provided initially)
- contact details: yours, plus those of an alternative contact.
2.3.2 Supporting documents
These documents form an important part of your instructions:
- all relevant Cabinet papers and papers sent to the Minister
- all relevant precedents, cases, legal opinions, and reports
- notes of any relevant court or other proceedings in contemplation
- official copies of any relevant international agreements or obligations
- a description of your consultation with other departments and agencies: the names of organisations and individuals within them consulted, and their input
- any other relevant background material.
It is important that you include relevant material whether or not it supports your department's view. If you are not sure whether a document is relevant, discuss it with your Drafting Team Manager or, after you have submitted the instructions, with the drafter. If new documents become available later on, supply them promptly. The drafter needs as complete a picture of the proposal as possible.
2.3.3 Questions to answer
Through your instructions (or in some cases through later contact with the drafter), you need to provide answers to the following questions:
- How does the proposal relate to other legislation?
- Are there any unresolved difficulties with any of the matters covered in the instructions?
- Is the proposal consistent with the LAC Guidelines?
- Do you suspect any conflict with the Bill of Rights (see section 3.4.1)?
- Do you suspect any conflict with the Privacy Act 1993?
- Does the proposal work in all the relevant practical scenarios?
- Have you checked the proposal with your operational people?
- Which department(s) will administer the Act?
- When does the legislation need to come into force?
- What time constraints exist?
- If the instructions are for a Bill, what regulations will need to follow?
- If the instructions are for regulations, are you satisfied that they will not be outside the limits of the Act under which they are to be made (ie will not be ultra vires)? If not, explain the problem.
2.3.4 Before submitting your instructions
Take a fresh look at the instructions. Ask yourself: "If I knew nothing of the proposal, would this narrative give me a clear picture of what is wanted?"
If possible, have the instructions peer reviewed by another instructor.
If you are including material provided by others, check that you are equally able to answer questions on the detail of this material.
Examine the instructions from both the legal and practical perspectives.
Address as many of the problems as possible before submitting your instructions. However, and particularly if time is short, it may be better to pass on incomplete instructions, and tell the drafter about the unresolved issues and the process for resolving them.
Let the drafter know which options you have examined and eliminated, and why. This will avoid the drafter duplicating your work.
2.4 Departmental drafts
Departmental drafts are not a required part of instructions. However, some departments prepare drafts to test proposals and "tease out" issues, and you may wish to include such a draft with your instructions (as is common when giving instructions for regulations). If you are thinking of submitting a departmental draft with your instructions, please discuss this with your Drafting Team Manager.
If you wish to include a draft with your instructions, it is important that you also give us a clear narrative that explains the draft both in detail and in its overall intentions.
2.5 Submitting your instructions
Address instructions for Bills to the Chief Parliamentary Counsel. Instructions for regulations should be addressed to your Drafting Team Manager (see section 6.4).
You can submit your instructions by letter, fax, or SEEMail (see glossary). You should be aware of the security level. Drafting instructions and drafting work are classified as In Confidence or higher (see section 6.3 for more information).
If sending instructions by SEEMail, please give an accurate and succinct subject line. Meaningful subject lines should continue to be used with all later emails relating to the development of the legislation. However, the subject line will not be encrypted and so it may not be appropriate to name the Bill in it. If this is the case, please use either an acronym or an alternate name agreed with the drafter. And please avoid creating emails containing instructions for multiple pieces of legislation, but rather send a separate email message for each.
If your instructions include a departmental draft, please supply the document in rich text format (rtf) (preferred) or MS Word.
2.5.1 Forms and graphics
Your instructions may include material to be produced in legislation as forms or graphics.
If possible, the PCO prefers to produce forms in legislation using text only. This allows the material to be amended easily if required. The PCO is able to edit text only forms, but not forms supplied as graphics. A text-only format can also be downloaded more quickly on the internet, and can be searched.
If, however, the form contains graphical elements that must be reproduced in legislation, or the whole form must be reproduced exactly as supplied, you will need to supply the entire form as a graphic. If changes to the graphic are later required, the graphic will need amending at source and resupplying.
The PCO has certain requirements for graphics, and forms supplied as graphics, that it can accept. Each graphic should be supplied in one of the following formats:
For forms, flow charts, and diagrams, the preferred format is Visio (.vsd).
All graphics must fit within a standard legislative page (or will be reduced to this), and should have a minimum resolution of 1200 dpi.
More information on supplying forms and graphics to the PCO is available under Instructing the PCO on the PCO website.
3 THE DRAFTS
You have sent your instructions to the PCO. You can now expect us to:
- acknowledge them
- tell you who the drafter(s) will be
- prioritise the work within the PCO
- discuss the timeline and other preliminary matters with you
- begin drafting.
3.1 The role of the drafter
The drafter's job is to produce a draft that gives effect to Government policy, is legally correct, and is expressed as clearly and simply as possible. You can expect the drafter to:
- ask questions to clarify the issues
- help identify and solve problems associated with the proposal
- consider your comments carefully
- be aware of the Parliamentary process and the statute book as a whole
- for regulations, consider the matters relevant to certification (see section 5.1)
- work within the requirements of PCO layout and style
- draft to the timetable you have agreed with the drafter.
During drafting, the drafter will consider the same sorts of questions that you considered while formulating your instructions (section 2.3.3).
In broad terms, the drafter is responsible for the way that legislation is expressed and presented, while responsibility for policy lies with the department. In practice, policy and drafting are not mutually exclusive but form a continuum.
Drafters also have a wider responsibility. They are counsel to the Government and Parliament in their legislative capacity. This can occasionally lead a drafter to take a different view on the implementation of policy decisions from that of your department. If necessary, the drafter may ask for an assurance from you that the instructions reflect the Government's or Minister's intentions.
If the drafter believes there is a serious conflict with good drafting practice or general legal principle, which discussion between you and the drafter has not resolved, the drafter may submit a memorandum to the Attorney-General setting out the drafter's concerns.
The PCO's independence can be useful if differences arise between departments. The drafter can help to resolve the conflict in an impartial and unbiased way.
The drafter's relationship with you is in many respects analogous to the lawyer–client relationship. The drafter has a duty of confidence. No information about the drafting of particular legislation will be communicated by us to any outside individual or organisation (including the media and outside solicitors) if it could breach that obligation of confidence. If the PCO receives inquiries about the legislation, we will refer them to your department or to the office of the Minister responsible, as appropriate.
3.1.4 Style and layout
The PCO is committed to drafting legislation as clearly and as simply as possible.
Drafters work within the constraints of an approved layout and style that govern the structure and presentation of legislation (eg the numbering system and how text is set out on the page). These rules are both a matter of tradition and of function. They assist the reader's understanding and are a requirement for producing legislation electronically.
3.2 Responding to drafts
When you receive the first draft (and for each subsequent draft):
- read it critically
- check it against your instructions
- check that nothing is missing
- check for internal consistency
- check for readability
- check for any conflict with approvals
- test it against practical scenarios or formulae
- check it against the questions listed in section 2.3.3
- answer any queries the drafter has raised
- check that it meets the policy intentions.
3.2.1 Your feedback
Try to respond promptly to the draft, so that the matter is still fresh in the minds of the drafter and everyone else involved.
If parts of the draft are hard to understand, query them. When you find a problem with the draft, respond by explaining what is wrong. Focus on the concepts rather than the words. Give illustrations of the problem.
As principal instructor, you will be collecting comments from others within your department. Analyse the comments and filter out those that are unhelpful or misconceived. Give the drafter the results of your internal discussions and decisions, without including all the preliminary views.
Your feedback can take various forms, but it is best to put significant comments in writing. Hand-annotated comments on a PCO draft are acceptable. The drafter will redraft in response to your feedback. After the first draft, the rewriting can be substantial. The iterative process of drafting and feedback continues until a satisfactory result is achieved.
The aim at this stage is to simplify, refine, and develop, rather than to introduce new ideas. However, seeing a draft can make issues plain that were not plain before. While this is not an ideal process, drafting can thus lead to changes in policy. The earlier these changes are made, the better.
If you have any serious concerns about the drafting that discussion with your drafter fails to resolve, you should raise them with your Drafting Team Manager (or the Deputy Chief Parliamentary Counsel, if the drafter is the Drafting Team Manager).
3.3.1 Consultation with other agencies
When your department is happy that the draft reflects the policy, the drafter will arrange for it to be circulated to the other departments that have an interest in it. The drafter will use as a starting point the list you supplied of departments already consulted (see section 2.3.2). In some cases, more commonly with regulations, you and the drafter may agree that you will arrange the distribution instead. Whichever arrangement is used, both you and the drafter must receive copies of all the comments received on the draft from the departments consulted.
Ministerial approval is needed before a draft is disclosed to agencies outside government (unless the agency concerned is the instructing agency, eg the Financial Markets Authority). If non-government agencies are to be consulted, the drafter will rely on you to coordinate consultation with them.
If questions of Parliamentary procedure arise, input from the Office of the Clerk may be appropriate before a Bill is introduced. For example, if a Bill amends more than one Act (other than consequentially), the application of the omnibus Bill rules in the Standing Orders may be relevant. The drafter can help identify the procedural issues and liaise with the Office of the Clerk.
You should ensure that your method of consultation is consistent with the security classification of the draft (see section 6.3).
3.3.2 Public consultation
If you need an exposure draft for public consultation (for which Ministerial or Cabinet approval is required), ask your drafter for a suitable version. The drafter will ensure that it is formatted correctly for the purpose (eg with the drafter's name and the words "In Confidence" removed). This document is usually supplied to you in PDF form.
3.4 Bills: final steps before introduction
3.4.1 Bill of Rights vetting
All draft Government Bills (except Appropriation Bills and Imprest Supply Bills) must be vetted for compliance with the New Zealand Bill of Rights Act 1990, usually by the Ministry of Justice, before they are submitted to the Cabinet Legislation Committee (LEG) (see the CabGuide). This is arranged by the drafter, who must allow at least two weeks for the process. The drafter will already have informed the vetting team about the Bill when he or she first received your instructions, along with your contact details.
It is useful to check the draft for compliance before it is submitted for vetting. The Ministry of Justice booklet The Handbook of the New Zealand Bill of Rights Act 1990 includes guidelines to help with this (see section 6.2).
3.4.2 Explanatory note
All Bills at introduction are prefaced with an explanatory note, which is omitted from the Bill when it is reported back from the select committee.
The explanatory note usually has three parts:
- a general policy statement, setting out the general policy of the Bill—prepared by the department, with editorial input from the PCO
- a short statement that a regulatory impact statement (RIS) has been prepared by the department, with URLs for the locations on the department’s and Treasury’s websites where it may be accessed
- a clause by clause analysis stating the effect of the individual clauses—prepared by the drafter.
See Instructing the PCO on the PCO website for guidance on RISs.
If the Act (or part of it) is to come into force on a date appointed by Order in Council, the explanatory note must include the reason why this is necessary.
If the Bill is an omnibus Bill for which Business Committee approval has been given, the explanatory note must mention this. The drafter will provide the appropriate wording.
The PCO is not involved in the preparation of related speech notes or briefing papers.
3.4.3 Cabinet Legislation Committee (LEG)
LEG examines all draft Bills before they are approved for introduction into the House. When your department agrees that the Bill is ready, and it is settled as far as possible with other departments, the drafter will arrange for it to be sent to the Cabinet Office for submission to LEG. The Cabinet Office will attach the draft Bill to your LEG paper.
When a Bill is approved by LEG, it is usually referred to Cabinet. Cabinet's approval is required before the Bill is introduced, unless LEG has been given the power to act. Note that a Bill remains confidential until it has been introduced.
4 BILLS: FROM INTRODUCTION TO ASSENT
Only some basic points of Parliamentary procedure are covered in this section. For more information, see Parliamentary Practice in New Zealand by David McGee, the Standing Orders of the House of Representatives, and Speakers' Rulings (see section 6.2).
Note that as the Bill passes through the House, the drafter will attend some parts of the process and not others. The basic principle is that, if amendments can be made, the drafter will attend; if no amendments are possible, the drafter need not attend.
When a Bill is ready for introduction, the drafter will arrange for copies to be printed for the House. The drafter will also send copies to the Minister, the Leader of the House, and the Prime Minister, and copies to you. The Leader of the House then arranges for introduction, and the Bill becomes available to Members and the public. The Bill is published on the New Zealand Legislation website as soon as possible, and by the day after introduction at the latest.
First reading can occur on or after either the next sitting Tuesday or the third sitting day after introduction (see the Standing Orders). The Bill without any amendments will then normally be referred to the relevant select committee.
4.2 Select committee
The select committee will usually call for submissions. The subsequent process involves several stages:
- by department—drafter may attend but has no role
- you and the drafter receive copies of all written submissions from the clerk
- oral submissions are heard—drafter may attend
Consideration of departmental report
- department prepares the departmental report (see section 4.2.1)
- department presents the report—drafter attends
- committee asks the drafter to prepare amendments to the Bill
Consideration of RT Bill
- drafter presents a revised version of the Bill (the RT Bill—see section 4.2.2)
- the committee votes on the amended Bill—drafter attends.
The drafter's role remains as outlined in section 3.1, both in terms of drafting and in providing independent advice on the legal implications of provisions.
Throughout the select committee stage, you should keep in regular contact with the drafter to ensure that you share the same understanding of the Bill and the effect of any proposed amendments. Avoid raising matters before the select committee relating to the drafting that you have not first discussed with the drafter.
4.2.1 Departmental report
It is important that the development of the departmental report is discussed with the drafter. Send the drafter a copy before it is finalised, and then the final version as provided to the select committee.
The report should make clear recommendations that the drafter can act upon, but it should not include actual drafting unless prepared by the drafter or qualified with a phrase such as "subject to PCO". The report should suggest concepts rather than specific words. There is no need to identify the minor or consequential amendments required, as the drafter will attend to these.
4.2.2 Revision-tracked (RT) Bill and reported-back Bill
The amended Bill produced for the select committee is known as a revision-tracked, or RT, Bill. This is the Bill as introduced with the proposed amendments shown using strike-out and underline. The drafter drafts the RT Bill based on the select committee's recommendations arising out of the departmental report.
The drafter will pass the RT Bill to you for feedback. Check it with the same care you used on earlier drafts, using the guidance given in section 3.2.
When you are satisfied with it, the drafter takes the select committee through the RT Bill. Further amendments may then be required—it can take several rounds of amendments before the Bill is ready for deliberation. When the committee has deliberated, the Office of the Clerk prepares the "reported-back" or "as reported" version of the Bill (checked and published by the PCO) for the second reading and committee of the whole House stages. This version incorporates the changes agreed by the committee, shown as having been agreed unanimously or by a majority, and the committee's commentary.
It is usual for the committee clerk to ask the drafter and instructors to comment on the commentary (prepared by the clerk). This is an important opportunity to check the commentary for accuracy.
4.3 Second reading
At the second reading of the Bill, the House agrees to or rejects the amendments recommended by the select committee and shown in the reported-back version of the Bill. The debate is limited, and no further amendments are made. The drafter has no involvement at this stage, although departmental officials usually attend.
4.4 Committee of the whole House
The committee of the whole House (the "committee stage") is made up of all Members of the House other than the Speaker. The committee considers the Bill Part by Part or clause by clause, and amendments can be moved by the Minister in charge of the Bill or by any other Member. Amendments vary in form, and may include even a handwritten note (a "table amendment"), but most Government amendments are in the form of a Supplementary Order Paper. The drafter attends the committee stage.
4.5 Supplementary Order Papers (SOPs)
The process of producing an SOP can begin at any time after a Bill is introduced, although most are prepared after the select committee has reported back. SOPs are debated in the House at the committee stage.
Government SOPs are prepared by the drafter following your instructions. It is useful if you can give the drafter advance warning that an SOP is likely to be wanted. Consultation with other departments may be necessary and, if policy issues are involved, the SOP may be referred to LEG as if it were a Bill. In some cases the Minister will refer the SOP to a select committee.
Once the Minister has approved the SOP, the drafter will arrange for it to be printed for the House and for copies to be sent to you. The Minister's office will authorise the Office of the Clerk to release copies of the SOP to Members and to make it public.
Non-Government SOPs are usually prepared by the Office of the Clerk. If you are aware that a non-Government amendment could be adopted by the Government or agreed to by the committee of the whole House, advise the drafter immediately. This is necessary to give the drafter an opportunity to advise if there is a drafting problem.
4.5.1 Break-up SOPs
A break-up SOP is one that divides an omnibus Bill into two or more Bills so that they can be enacted as separate Acts. This is usually signalled in the explanatory note to the introduction version of the Bill.
The drafter does not need instructions to prepare a break-up SOP, but the SOP must be approved by the Minister before being printed for the House.
4.6 Third reading and Royal assent
The Office of the Clerk arranges for the third reading version of the Bill (the Bill with all amendments agreed to at committee stage) to be published by the PCO. The Bill's third reading follows.
Finally the Office of the Clerk prepares, and the PCO checks and publishes, a proof assent copy of the Bill in preparation for the Royal assent to be given by the Governor-General.
4.6.1 Administration of the Act
At the proof assent stage, a statement as to which department will administer the Act is inserted by the Office of the Clerk. The issue of which department will administer is usually settled before drafting begins (see section 2.1.2), but if it cannot be resolved by officials it may have to be referred to the relevant Ministers or Cabinet.
4.7 After Royal assent
If the Act (or part of it) is to come into force on a date appointed by Order in Council, instruct the drafter to prepare the necessary Order in Council (taking into account the 28-day rule—see glossary for more detail). The more usual situation is that the Act comes into effect on a specified date, or on the day following Royal assent.
Copies of the Act are printed for sale and distribution without the department's involvement. If you think there may be unusually high demand for the Act, let the drafter know so that the number to be printed can be increased.
See the PCO's website for information on how to obtain copies of an Act once published. Unofficial versions are available on the New Zealand Legislation website at www.legislation.govt.nz.
If you find an error in the Bill after the committee stage, let the drafter know as soon as possible. If the error is found before the third reading, and is significant, the Bill may be able to be recommitted (sent back to the committee of the whole House) for correction. If the error is merely clerical or typographical, it may be possible to correct it under the authority of the Standing Orders when the Royal assent copy is being prepared.
5 REGULATIONS: FROM CERTIFICATION TO GAZETTE
Sections 2 and 3 in this guide, on preparing instructions and the drafts, apply to regulations just as they do to Bills (with the exception of section 3.4). (We use "regulations" here, and elsewhere in this guide, to include the Statutory Regulations, rules, notices, etc drafted by the PCO.) The procedure once the draft is agreed, however, is quite distinct from that for Bills.
When you are satisfied with the regulations as drafted, they must be certified before they can be submitted to LEG (see section 5.2 below). Certification is the responsibility of the drafter, who will have kept the requirements for certification in mind throughout the drafting process.
If satisfied that the regulations are in order for submission to Cabinet, the drafter will stamp and sign a copy of the regulations accordingly. If not satisfied that the standards are fully met, the drafter will issue a qualified certificate and will usually give the reasons for doing so in an accompanying letter.
To decide whether the regulations are in order for submission to Cabinet, the drafter will consider whether the regulations:
- might be outside the limits of the Act under which they are to be made (ie are ultra vires)
- are inconsistent with general legal principles
- fit any of the grounds on which the Regulations Review Committee may draw attention to a regulation (see the Standing Orders) that the drafter considers should be drawn to the Minister's attention.
The drafter will note in the certificate if the empowering Act stipulates any procedural matter that must be satisfied, such as a requirement for consultation with another party.
If conflict with the 28-day rule is possible, the drafter will note this also. (The CabGuide sets out the cases where the 28-day rule can be waived; if a waiver is necessary, it must be noted in the Cabinet submission.)
5.2 LEG, Cabinet, and the Executive Council
The regulations, along with the relevant Cabinet papers, are first submitted to LEG. (See the CabGuide for the procedure for submitting papers.) If LEG approves the regulations, they are referred to Cabinet. If Cabinet confirms LEG's approval, it sends the regulations to the Executive Council for the Governor-General's signature.
This process may be replaced by approval of the Cabinet Business Committee (CBC) in the event that the normal Cabinet process has been replaced by the CBC (as sometimes happens during a recess period). The Cabinet Office advises the PCO in advance if this is to happen.
In exceptional circumstances, regulations may be sent direct to Cabinet (a step that requires the Prime Minister's approval).
The drafter arranges delivery of the following papers required by LEG and the Executive Council:
- the signature copy of the regulations (the copy for the Governor-General to sign)
- the certified copy (with the drafter's stamp)
- the required number of additional copies.
The drafter will send these to you, or to the Minister's office, or direct to the Cabinet Office as you prefer and the timetable allows.
Your department must also provide to LEG:
- a Cabinet paper
- an advice sheet signed by the Minister stating that the Governor-General is recommended to sign the accompanying Order in Council
- a CAB 100 form certifying the consultation undertaken.
See the Cabinet Manual and the CabGuide for more detail on these requirements.
5.2.1 Delays in making regulations
If you become aware of a delay between the drafter certifying the regulations and their submission to the Executive Council, notify the drafter. A hold-up here can lead to problems with the 28-day rule or other difficulties in timing that may prove serious. In some cases redrafting may be necessary. The drafter's involvement in the regulations usually ends with certification. The drafter may not know of any delay unless kept informed by you.
5.3 Gazetting and publication
Once regulations are made, they must be notified in the New Zealand Gazette (published on Thursdays). Gazettal of regulations that are approved by the Executive Council is arranged by the PCO without the department's involvement.
Departments are responsible for gazetting certain Ministerial notices and other regulations that do not go through the Cabinet process. To do this, the department must notify certain information to the Prepublication Unit (PPU) at the PCO as a matter of urgency once the instrument has been signed: the regulation title, the date signed, who signed, the place signed, and the intended date of notification in the Gazette. The drafter will discuss this with you. See section 6.4 for the PPU's contact details, and see Instructing the PCO on the PCO website for more information on this process.
If regulations come into force earlier than the day after the next regular issue of the Gazette, a supplement to the Gazette must be published. Your department will be charged for this publication.
Copies of regulations are printed for sale and distribution, again without the department's involvement. If you think there may be unusually high demand for the regulations, let the drafter know so that the number to be printed can be increased.
5.4 Regulations (Disallowance) Act 1989
The Regulations (Disallowance) Act 1989 provides for the disallowance of regulations. All regulations stand referred to the Regulations Review Committee and must be laid before the House after they are made for scrutiny by that committee. The PCO arranges this without the involvement of the department or the PCO.
6.1 Checklist: submitting instructions
See section 2 for a fuller explanation.
Check that your instructions contain the following:
- explanation of the legislative problem to be remedied
- explanation of what the legislation should do
- explanation of how the proposal relates to existing law
- description of what transitional and savings arrangements will be required
- description of consequential and related matters
- for a Bill: mention of any regulations that will be needed
- identification of any unresolved difficulties
- statement of which department will administer
- statement of expected timetable/any time constraints/when to come into force
- description of your consultation to date with other departments and agencies
- if instructions are incomplete, state what is to follow and when
- contact details: yours, plus those of an alternative contact
- if forms or graphics are supplied, they are in the appropriate format.
Check that the proposed legislation will be:
- consistent with the LAC Guidelines
- consistent with the Bill of Rights
- for regulations: within the ambit of the empowering provisions.
Check that you have included copies of the following:
- all relevant Cabinet papers and papers provided to the Minister
- all relevant precedents, cases, legal opinions, and reports
- notes of any relevant court or other proceedings in contemplation
- official copies of any relevant international agreements or obligations
- any other relevant background material.
6.2 Useful resources
|Acts, Bills, SOPs, and Statutory Regulations||www.legislation.govt.nz|
|Acts as enacted 1841–2007|
|CabGuide||the Guide to Cabinet and Cabinet Committee Processes, previously published as the Step by Step Guide
|Cabinet Office circulars||www.dpmc.govt.nz/cabinet/circulars/|
|Handbook of the New Zealand Bill of Rights Act 1990, The||published by the Ministry of Justice; available free of charge from CommArts, P O Box 2923, Wellington, email email@example.com, free fax 0800 266 627|
|House sitting programme||www.parliament.nz/en-NZ/ThisWk/Programme/|
|Legislation Direct||for official printed legislation—Acts, regulations, Bills, SOPs, reprints—both printed copies and PDFs www.legislationdirect.co.nz|
|New Zealand Gazette|
|New Zealand Legal Information Institute||www.nzlii.org|
|New Zealand Legislation website||www.legislation.govt.nz|
|Order Paper||the House's daily order of business www.parliament.nz/en-NZ/ThisWk/OrderPaper/|
|Parliamentary Bulletin||available from Bennetts and Legislation Direct; sections are available on the Parliament website|
|Parliamentary Practice in New Zealand||David McGee, 3rd edition 2005, Dunmore Publishing Ltd, Wellington|
|Parliament website||for information on Bills, SOPs, select committees, and other aspects of parliamentary business
|Progress of Legislation: Schedule of Bills||www.parliament.nz/en-NZ/PB/Legislation/Bills/Progress.htm|
|Reprints: list of reprinted legislation published by the PCO||www.pco.parliament.govt.nz/reprints-published.html|
|Standing Orders of the House of Representatives||www.parliament.nz/en-NZ/PB/Reference/StOrders/|
|Working with Select Committees: A Guide for Public Service Advisers||www.parliament.nz/en-NZ/PubRes/About/Procedures/|
See also section 1.4 on PCO resources.
Drafting instructions and drafting materials are classified as In Confidence or higher. The PCO ensures that documents are handled appropriately within the office and in delivery to outside agencies. The PCO takes no responsibility for the handling of documents once they are received by an outside agency.
It is PCO policy that SEEMail is used for emailing draft legislation. If a copy needs to be sent to a department that is not a member of SEEMail, then the draft is not emailed but sent as hard copy. For more about SEEMail see http://ict.govt.nz/common-capabilities/communications/seemail.
6.4 PCO contact details
Parliamentary Counsel Office
Level 12, Reserve Bank Building
2 The Terrace
PO Box 18 070
Phone 04 472 9639
Fax 04 499 1724
Contact details for the individuals given below will change from time to time. Please use the general PCO contacts given above if you are unsure.
Drafting Team Managers
Phone 04 817 9270
For departments: Attorney-General; Customs; Financial Markets Authority; MBIE (building and housing that is not tenancy); MBIE (commercial (except mining) and consumer affairs); IRD; Justice (occupational licensing and insurance/contracts, etc); Reserve Bank; Takeovers Panel; Treasury
Justice and Social
Phone 04 817 9272
For departments: Corrections; Crown Law; DIA (passports, citizenship, gambling); Education; MBIE (immigration); MBIE (tenancy); Police; Justice (except occupational licensing and insurance/contracts, etc); Public Trust; Rules Committee; Social Development
Resources and Treaty
Phone 04 817 9328
For departments: Conservation; Environment; Health; LINZ; MBIE (mining); MBIE (science); OTS; Primary Industries; TPK
Phone 04 817 9644
For departments: Arts and Culture; CERA; Defence; DIA (except passports, citizenship, gambling); DPMC; MBIE (except commercial law, consumer affairs, housing, immigration, mining, science, tenancy); MFAT; Parliamentary Service; Remuneration Authority; SSC; Statistics; Transport
Prepublication Unit (PPU)
Prepublication Unit Manager
Phone PPU on 04 817 6425.
To notify for Statutory Regulations made by an agency other than the Executive Council.
Phone 04 817 6707
For feedback on this guide, mailing list changes and feedback on the PCO Quarterly, and information on Instructing the PCO on the PCO website.
7 GLOSSARY AND INDEX
The glossary items that follow are intended to be a guide to use within the context of this publication, rather than providing complete definitions of the terms listed.
References are to sections. Where more than one reference is given, the primary reference is shown in bold.
|28-day rule||A Cabinet rule that regulations should not come into force until at least 28 days after notification in the Gazette. There are some cases where the rule can be waived. See the CabGuide for more information.||4.7.2, 5.1, 5.2.1|
|administration of an Act||4.6.1|
|annual legislation programme||A framework within which the preparation and progress of the Government's existing and proposed Bills are prioritised for the calendar year. At the end of each year Ministers are invited, by way of a Cabinet Office circular, to put in proposals (bids) for the inclusion of Bills in the annual legislation programme for the coming year. The programme groups Bills in descending order of priority, starting with Bills that must be passed each year.||2.1.1|
|as reported Bill||see reported-back Bill|
|assent||see Royal assent|
|Bill of Rights, Bill of Rights vetting||New Zealand Bill of Rights Act 1990.||2.3.3, 3.4.1, 6.2|
|break-up SOP||An SOP that divides an omnibus Bill into two or more Bills so that they can be enacted as separate Acts.||4.5.1|
|Business Committee||A multiparty committee of the House that meets twice a week to determine the business of the House.||3.4.2|
|CabGuide||The Guide to Cabinet and Cabinet Committee Processes (previously the Step by Step Guide), published by the Cabinet Office.||6.2|
|Cabinet||The central decision-making body of executive government. It provides a collective forum for Ministers to decide significant government issues.|
|Cabinet Business Committee (CBC)||The CBC comprises the 11 most senior Ministers plus any Minister with a portfolio interest in an agenda item.||5.2|
|Cabinet Legislation Committee (LEG)||The Cabinet committee that considers the Government's legislation programme, Bills, regulations, Government responses to select committee reports on inquiries and petitions, and other House business issues.||3.4.1, 3.4.3, 4.5, 5.1, 5.2|
|Cabinet Manual||A manual published by the Cabinet Office that records the constitutional conventions, procedures, and rules of Cabinet and central executive government.||6.2|
|certification||The process of a drafter stamping and signing a set of regulations as "certified in order for submission to Cabinet". A certificate may be qualified if a drafter is of the view that not all necessary standards have been met.||3.1, 5.1|
|clause||The basic unit of a Bill (and its schedules) and some types of regulations. When a Bill becomes an Act, its clauses are called sections (except for the clauses of any schedules).|
|Clerk's Office||see Office of the Clerk|
|commencement||The date on which an Act or set of regulations comes into force.||4.7.1|
|committee of the whole House||Made up of all members of the House other than the Speaker. When the committee examines a Bill (committee stage), any member may suggest amendments, usually by way of a Supplementary Order Paper (SOP).||4.2.2, 4.4, 4.5, 4.6, 4.8|
|committee stage||see committee of the whole House|
|consequential amendment||An amendment to an enactment that is required merely as a consequence of a substantive provision. Consequential amendments are needed to ensure that the whole of the statute book is consistent with the substantive changes proposed. Collectively referred to as "consequentials".||2.3.1, 4.2.1|
|consultation||2.1.2, 2.3.2, 3.3, 4.5, 5.1, 5.2|
|delegated legislation||Generic name for all legislation made under a power delegated by an Act. Examples include regulations, Orders in Council, and (some) ministerial Gazette notices. See definitions of "enactment" and "regulations" in section 29 of the Interpretation Act 1999.||1.2|
|departmental draft||An illustrative draft of legislation prepared by the department.||2.1.1, 2.3, 2.4, 2.5|
|drafter's role||3.1, 4.2|
|Drafting Team Manager||Manager of one of the PCO's three drafting teams. Your principal contact within the PCO before your instructions are assigned to a drafter.||1.2, 1.4, 2.1.1, 2.3, 2.4, 2.5, 3.2.1, 6.4|
|Executive Council||The institution through which the Government as a whole formally gives advice to the Governor-General. The convention is that the Executive Council comprises all Ministers of the Crown, whether or not they are members of the Cabinet; it is presided over by the Governor-General.||5.2, 5.3|
|explanatory note||The text at the front of the introduction copy of a Bill (but not part of the Bill) that usually consists of a general policy statement and a clause by clause analysis. The explanatory note does not appear on subsequent versions of the Bill and is not updated to take account of changes to the Bill in Parliament.
Regulations are also published with an explanatory note, which is prepared by the drafter. The explanatory note is not part of the regulations.
|exposure draft||A draft prepared by the PCO for public consultation and approved for release by the Minister responsible for the Bill or regulations.||3.3.2|
|first reading||A short debate in the House that follows introduction. A member explains the objects of the Bill; other members may debate the objects. Debate is limited to two hours; no amendments can be made. Members vote on whether to refer the Bill to a select committee. If the Bill is not referred on, members may vote to advance the Bill to its second reading or reject it.||4.1|
|forms and graphics formats||2.5.1|
|The New Zealand Gazette, the official newspaper of the Government of New Zealand. Published at least weekly by the Department of Internal Affairs.||5.3, 6.2|
|graphics and forms formats||2.5.1|
|House||The House of Representatives.|
|instructions, drafting instructions||Your instructions to the PCO that we use as the basis for drafting legislation.||section 2|
|introduction||The process by which a Bill formally becomes part of House business and first appears on the Order Paper. After introduction, a Bill becomes available to the public.||2.1.1, 3.4.2, 4.1, 4.5.1|
|LAC Guidelines||Legislation Advisory Committee Guidelines on Process and Content of Legislation. Includes a checklist of matters covered by the guidelines.||6.2|
|LEG||see Cabinet Legislation Committee|
|New Zealand Gazette||see Gazette|
|Office of the Clerk of the House of Representatives, Clerk's Office||The secretariat for the House. It provides specialist advice and assistance on Parliamentary law and procedures to the House of Representatives and its committees.||3.3.1, 4.2.2, 4.5, 4.6, 4.6.1|
|omnibus Bill||A Bill that deals with more than one substantive subject matter or substantially amends more than one Act. An omnibus Bill is allowable only as is permitted by Standing Orders.||3.3.1, 3.4.2, 4.5.1|
|PCO||Parliamentary Counsel Office||1.2, 6.4|
|PCO job numbers||A unique number given to every Bill or set of regulations drafted at the PCO. The final number indicates the version before introduction. For example, PCO 1234/1, PCO 1234/2 would indicate the first and second versions of a draft.|
|Portable document format. An electronic file format developed by Adobe Systems.|
|regulations||The most common form of delegated legislation drafted by the PCO. The term is often loosely used to describe a variety of delegated legislation that is prepared by the PCO and published in the Statutory Regulations (SR) series. See the definition of "regulations" in section 29 of the Interpretation Act 1999.|
|Regulations (Disallowance) Act 1989||5.4|
|regulatory impact statement (RIS)||Required in the explanatory note of those Bills that will impose compliance costs on business.||3.4.2|
|reported-back Bill||A Bill as reported back by the select committee that considered it. The reported-back Bill is debated at the Bill's second reading. A reported-back Bill is sometimes referred to as an "as reported" Bill. Note that "reported-back" can also refer to the Bill "reported-back" from the committee of the whole House.||4.2.2, 4.3|
|reprint/reprinted Act or reprinted Statutory Regulations||Acts and Statutory Regulations that have been reprinted to incorporate amendments since they were enacted or made.|
|RIS||see regulatory impact statement|
|role of drafter||see drafter's role|
|role of instructor||see instructor's role|
|Royal assent||Given when the Governor-General signs a Bill, at which point the Bill becomes an Act.||4.6, 4.7.1, 4.8|
|RT Bill||Revision-tracked Bill. A version of a Bill prepared by the PCO for a select committee showing the select committee's proposed amendments using underline or strike-out. It is the working draft of what will become the reported-back Bill.||4.2, 4.2.2|
|savings issues/savings arrangements||Provisions included in a Bill in order to preserve or save a right, privilege, or obligation that would otherwise be repealed or cease to exist once the Bill were enacted.||2.3.1|
|second reading||The second time a Bill is debated in the House. Members may briefly debate the changes to the Bill recommended by the select committee, as shown in the reported-back version, and re-examine its intended purpose and effect. Members then vote to decide whether the Bill should proceed or be rejected.||4.2.2, 4.3|
|section||The basic unit of an Act. Each section is numbered and deals with a separate subject. Before an Act is enacted (ie when it is still a Bill) these units are called clauses.|
|security||2.5, 3.3.1, 6.3|
|SEEMail||Secure electronic environment email. Provides secure email traffic between member agencies suitable for the transmission of information classified as In Confidence, Sensitive, and Restricted. See ict.govt.nz/common-capabilities/communications/seemail for more information.||2.5, 6.3|
|SOP||see Supplementary Order Paper|
|Standing Orders||Standing Orders of the House of Representatives.|
|statute book||The existing body of law set out in statute, ie Acts and regulations.|
|Supplementary Order Paper (SOP)||A published document setting out amendments proposed to a Bill. It has an SOP number and, once released, forms part of the public record of the proceedings of Parliament.||4.5|
|table amendment||A written proposal to amend a Bill that is tabled during the committee of the whole House stage. Unlike an SOP (which also shows amendments to a Bill), it is not formally printed and pre-circulated. Table amendments may be typed or handwritten but must be signed by the member making the amendments. Six copies must be given to the Clerk.||4.4|
|third reading||Final debate on the Bill as reported from the committee of the whole House. When a Bill has been read a third time, it has been passed by the House (see the Standing Orders).||4.6, 4.8|
|ultra vires||A term that applies to delegated legislation that falls outside the limits of the empowering provision under which it is made.||2.3.3, 5.1|
|urgency||When the House is in urgency, it sits for extended hours and some of the usual Standing Orders are suspended. See the Standing Orders for more detail.|
|web feed||Provides summaries of web content in a simple format. For information on subscribing to the web feeds on the New Zealand Legislation website, visit About web feeds.||1.4|