7.82 In general, the principles and policies of the law are set out in Acts of Parliament. Parliament can delegate power to the Executive to make some laws, in the form of regulations. Regulations usually deal with matters of detail or implementation, matters of a technical nature, or matters likely to require frequent alteration or updating. The authority to make regulations is set out in the relevant Act. Regulations should not, in general, deal with matters of substantive policy, have retrospective operation, purport to levy taxes, or contain provisions that purport to amend primary legislation.
7.83 “Regulations” is a collective term that covers all subordinate instruments made under the power delegated by Parliament. Such instruments include regulations, a range of legal instruments such as rules or bylaws, instruments revoking regulations, and some Orders in Council, proclamations, notices, and warrants (for a full definition, see section 29 of the Interpretation Act 1999). Sometimes instruments that are not regulations as defined, are nevertheless “deemed” by statute to be regulations in order to subject them to scrutiny or publication requirements. Legislative instruments drafted by the Parliamentary Counsel Office are published in the Legislative Instruments Series, while instruments drafted by agencies are published or notified in the New Zealand Gazette or made available on the agencies' own websites.
7.84 The limits of the regulation-making power will be defined as precisely as possible in the enabling Act. Therefore care must always be taken to ensure that the regulations fall within the scope of the power granted. The High Court can review regulations and declare them to be ultra vires and therefore invalid if they are outside the scope of the power to make them.
7.85 The Regulations Review Committee examines all regulations after they are made. This select committee considers whether it should draw the regulations to the attention of the House on any of a number of grounds relating to basic legal or constitutional principle (see the section entitled “Delegated legislation” in the chapter on legislative procedures in the Standing Orders). This scrutiny forms the basis for any recommendation to the House.
7.86 A process also exists under the Legislation Act 2012 and the Standing Orders to move a motion in the House for the disallowance of a regulation. The Regulations Review Committee also investigates complaints on the operation of regulations, on grounds set out in the Standing Orders.
7.87 It is expected that departments will systematically monitor and review all regulations for which they are responsible. Each department is encouraged to prepare a schedule of the regulations that are likely to be required each year. Such a schedule would include, for example:
- regulations that will be needed as a consequence of new legislation being developed by the department;
- regulations that are required at specific dates each year; and
- amendments needed to existing regulations as a result of a review or changes in fees.
7.88There is no formal programme for the drafting of regulations. However, when submitting a bill for a place on the annual legislation programme, Ministers are required to provide a summary of any associated regulations that it will be necessary to implement the legislation, and an indication of the likely timing of making the regulations. It is good practice for departments to give the Parliamentary Counsel Office information on any significant proposed regulations early in each year, when Cabinet decisions are being made on the legislation programme.
7.89 Some regulations are made by Order in Council. Such regulations must be developed and made by following a particular process. The CabGuide sets out detailed guidance on the process for developing regulations. The LAC Guidelines include extensive guidance on the development of delegated legislation. The Guide to Working with the Parliamentary Counsel Office also provides useful guidance for departmental legal advisers and other officials working with the Parliamentary Counsel Office. The Legislation and House Procedure Handbook contains additional guidance for staff in Ministers' offices.
- identifying the need for regulations (through departmental monitoring and consideration of the relevant statute);
- developing the policy behind the regulations (if necessary);
- consultation (as required):
- with relevant departments;
- with government caucus(es);
- with other parties represented in the House and independent members of Parliament;
- with affected groups if this is required by legislation, identified as necessary by the department or Ministers, or otherwise appropriate;
- submitting any policy, including an impact statement or summary, to a Cabinet committee and Cabinet for approval. If the regulations are routine and do not require new policy decisions, the Minister may authorise drafting without reference to Cabinet;
- drafting by parliamentary counsel;
- submitting the proposed regulations to the Cabinet Legislation Committee and Cabinet for authorisation for submission to the Executive Council;
- notification in the New Zealand Gazette;
- a 28-day period before the regulations come into force (see paragraphs 7.96 – 7.99 for further details on the 28-day rule); and
- publication in the legislative instruments series.
7.92 Departmental planning must take account of the time needed for all of these steps, allowing room for slippage at all stages. An absolute minimum of six weeks should be allowed between the completion of the drafting of the regulations and the date on which the regulations come into force, assuming all preceding steps have been completed satisfactorily.
7.93 It is increasingly common for the empowering Act to impose an obligation on those developing regulations to consult with interested groups. Care needs to be taken to ensure that sufficient time is allowed for meaningful consultation, and that proper consultation takes place. Failure to meet a statutory requirement to consult may lead to the regulations being invalidated by the courts. Consultation with others, such as the government caucus(es), non-government parliamentary parties in the House, or any independent members of Parliament, if required, may also take time.
7.94 The parliamentary counsel drafting the regulations will consider whether the regulations are within the regulation-making powers granted in the Act. If the draft regulations are not within these powers, restrict individual freedom unreasonably, or are otherwise undesirable from a legal perspective, the parliamentary counsel will notify the Attorney-General and the Minister and department concerned.
7.95 A small number of Orders in Council are drafted within departments and submitted directly to the Executive Council (see paragraph 1.41). The principles set out in paragraphs 7.89 – 7.94 in relation to regulations drafted by the Parliamentary Counsel Office apply to these orders. Technical requirements for such Orders in Council are included in the information on the Executive Council in the CabGuide.
7.96 It is a requirement of Cabinet that regulations must not come into force until at least 28 days after they have been notified in the New Zealand Gazette. The 28-day rule reflects the principle that the law should be publicly available and capable of being ascertained before it comes into force.
7.97 There are some instances where regulations do not require compliance on the part of the public, or where it is otherwise appropriate to seek a waiver of the 28-day rule. Some examples are:
- where a regulation has little or no effect on the public, or confers only benefits on the public;
- where the regulations are made in response to an emergency;
- where early commencement is necessary for compliance with statutory or international obligations;
- where early commencement is necessary to avoid unfair commercial advantage being taken, or the purpose of the regulations being defeated; or
- where irregularities need to be validated.
See the CabGuide for further details on the 28-day rule.
7.98 A paper seeking Cabinet’s agreement to a waiver of the 28-day rule must set out the reasons for seeking the waiver, and include recommendations in the standard form (see the CabGuide). Each case will be considered on its merits. Cabinet will not grant a waiver of the 28-day rule unless there is good reason to do so.
7.99 The parliamentary counsel drafting the regulations will note any non-compliance with the 28-day rule when they certify the regulations as being in order for submission to Cabinet. The Cabinet Office also collects information on compliance with the 28-day rule. Where there appear to be ongoing difficulties in complying with the rule, the Cabinet Office will seek an explanation from the office of the Minister and the chief executive concerned to identify and resolve problems.
7.100 All regulations must be printed, published, and notified in the New Zealand Gazette, as soon as they have been made. Publication in the legislative instruments series and notification in the New Zealand Gazette are the minimum publicity requirements for new regulations. Ministers and departments should consider what other steps may be needed to give adequate publicity to a particular law change.
7.101The Guide to Working with the Parliamentary Counsel Office contains information on certifying, gazetting, and publishing regulations (see also paragraphs 1.50 - 1.52).