Key points

1Primary legislation that delegates to the Executive a power to make an instrument that is legislative in nature should, in general, make the instrument subject to:

2In a very few cases, however, good reasons may exist for departing from this general rule, by not making the instrument subject to either Act. This circular sets out the matters to be considered when assessing whether such a departure is justified. If such reasons exist, they must be set out in the Cabinet paper seeking approval for the introduction of legislation that delegates the law-making power.

3The circular applies to proposals for new primary legislation and for amendments to primary legislation that include delegated law-making powers to make legislative instruments. It does not apply to existing delegated law-making powers, or to delegated powers to make instruments that are not legislative in nature.

Legislative instruments should, in general, be made subject to both Acts

4The general rule is that both the Regulations (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989 (the Acts) should apply to instruments that are legislative in nature. The disallowance process makes those instruments subject to parliamentary scrutiny, in accordance with Parliament’s legitimate interest in ensuring the proper exercise of the delegated power. Publication of the instruments in the Statutory Regulation series (the SR series) provides the public with appropriate access to the legislation that affects them.

5In broad terms, an instrument is legislative in nature if it:

6Regulations, as defined in the Interpretation Act 1999 and in the Acts, (a copy of the definition is attached at Appendix A), are the most common legislative instruments to be made under a delegated law-making power. Regulations are subject to both of the Acts.

7Occasionally proposals for primary legislation include a power to make an instrument that is legislative in nature but that does not fall within the definition of a “regulation”, and which is therefore not subject to either of the Acts. The instrument may, for example, be called a “determination”, a “direction,” or “guidelines.” An example of a legislative instrument of this kind is the code of broadcasting standards issued by the Broadcasting Standards Authority.

8As a result, the delegated legislation would not be subject to parliamentary scrutiny, nor published in the SR series, which may be undesirable. Such an instrument should, as a general rule, be made subject to one or both of the Acts by declaring in the primary legislation that it is a regulation for the purposes of one or both of the Acts.

Reasons for departing from the general rule

9In a very few cases good reasons may exist for departing from the general rule. Cabinet has agreed that where such good reasons exist, they must be set out in the Cabinet paper seeking approval for the introduction of legislation that delegates the law-making power.

10If, therefore, proposed legislation or amendments to legislation include a power to issue an instrument that is legislative in nature, but that does not fall within the definition of a regulation, consideration should be given to:

Disallowance

11The presumption is that all legislative instruments made under a law-making power delegated by Parliament should be made subject to disallowance under the Regulations (Disallowance) Act 1989, in order to allow them to be scrutinised by Parliament.

12In some situations, however, it may not be appropriate for Parliament to have oversight and control of the proposed instrument. These situations include those where:

13In most other circumstances, the instrument should be declared to be a regulation for the purposes of the Regulations (Disallowance) Act 1989.

Publication

14All legislative instruments that are subject to disallowance should also be subject to the Acts and Regulations Publication Act 1989, and therefore published in the SR series. In some cases, however, separate publication (ie publication outside the SR series) may be justified.

14Some of the reasons for separate publication may be the same as the reasons why a legislative instrument might not be made subject to disallowance (see paragraphs 12.1-12.3). In addition, separate publication may be justified if, for instance:

16In most other circumstances, the instrument should be declared to be a regulation for the purposes of the Acts and Regulations Publication Act 1989.

Cabinet requirements

17Every submission to Cabinet seeking approval for the introduction of legislation or amendments to legislation that delegate to the Executive a power to make a legislative instrument that will not be subject to either disallowance or publication in the SR series must set out the justification for the resulting lack of parliamentary scrutiny and reduced public access to legislation.

18Every bill that provides for the separate publication of a legislative instrument outside the SR series should state the reasons for separate publication in the explanatory note to the bill.

19An empowering provision that permits separate publication of a legislative instrument should specify that:

Further guidance

20Advice on Cabinet’s requirements may be sought from the Cabinet Office.

21Advice on the nature of a proposed instrument may be sought from the Parliamentary Counsel Office.

22Further guidance on delegated legislation can be found at chapter 10 of the Legislation Advisory Committee Guidelines on Process and Content of Legislation (http://www.justice.govt.nz/lac/). See also the Regulations Review Committee’s Inquiry into instruments deemed to be regulations – an examination of delegated legislation, and the government’s response to the inquiry.