Authority to make secondary legislation
7.85 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 secondary legislation. Secondary legislation usually deals 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. Secondary legislation 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.
7.86 Secondary legislation is law made by someone other than Parliament, under a power that Parliament has formally delegated in a particular Act of Parliament and that the Act states is secondary legislation. It is an umbrella term covering many types of secondary legislation, including regulations, orders, rules, notices, and so on, the names of which reflect their different nature. Local authority bylaws are also secondary legislation under section 161A of the Local Government Act 2002. In a small number of cases, secondary legislation is made, not under an Act, but under the royal prerogative. Secondary legislation must be published in accordance with Part 3 of the Legislation Act 2019, with the relevant requirements set out in a table found under the empowering provision in the Act.
Scrutiny of secondary legislation
7.87 The scope of the power to make secondary legislation will depend on the wording of the enabling Act. Therefore, care must always be taken to ensure that secondary legislation falls within the scope of the power to make it. The High Court can review secondary legislation and declare it to be ultra vires and therefore invalid if it is outside the scope of the power to make it.
7.88 The Regulations Review Committee examines all secondary legislation after it is made. This select committee considers whether it should draw the secondary legislation 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.
7.89 A process also exists under Part 5 of the Legislation Act 2019 and the Standing Orders to move a motion in the House for the disallowance of secondary legislation. The Regulations Review Committee also investigates complaints on the operation of secondary legislation, on grounds set out in the Standing Orders.
7.90 Part 5 of the Legislation Act 2019 also requires secondary legislation to be presented to the House by the relevant Minister. Currently this applies to all secondary legislation made by Order in Council and some other secondary legislation. The presentation requirements for secondary legislation are set out in a table found under the empowering provision in the Act.
Planning for the development of secondary legislation
7.91 It is expected that agencies will systematically monitor and review all secondary legislation for which they are responsible, as part of their regulatory system stewardship responsibilities. Each agency should monitor the secondary legislation that it is likely to require each year, including:
- secondary legislation that will be needed as a consequence of new legislation being developed by the agency;
- secondary legislation that is required at specific dates each year; and
- amendments needed to existing secondary legislation as a result of a review or changes in fees.
7.92 There is no formal programme for the drafting of secondary legislation. However, when submitting a bill for a place on the annual legislation programme, Ministers are required to provide a summary of any associated secondary legislation that will be necessary to implement the Bill, and an indication of the likely timing of making the secondary legislation. It is good practice for agencies to give the Parliamentary Counsel Office information on any significant proposed secondary legislation early in each year, when Cabinet decisions are being made on the legislation programme.
Process for developing secondary legislation to be made by Order in Council
7.93 Regulations, commencement orders, and some other secondary legislation are made by Order in Council. Such secondary legislation must be developed and made by following a particular process. The CabGuide sets out detailed guidance on the process for developing regulations. The LDAC Guidelines include extensive guidance on the development of secondary legislation. The Parliamentary Counsel Office Turning Policy Into Law Guide also provides useful guidance for agencies' legal advisers and other officials working with the Parliamentary Counsel Office.
7.94 The guidance provided in paragraphs 7.24 - 7.70 concerning the development of primary legislation applies equally to the development of secondary legislation.
7.95 The steps in the process include:
- identifying the need for regulations or amendments to secondary legislation (through agency monitoring and consideration of the relevant statute and regulatory system);
- developing the policy behind the secondary legislation (if necessary);
- consultation (as required):
- with relevant agencies;
- with government caucus(es);
- with other parties represented in the House and independent members of Parliament; and
- with affected groups if this is required by the empowering Act, identified as necessary by the department or Ministers, or otherwise appropriate;
- submitting any policy, including an impact statement, to a Cabinet committee and Cabinet for approval. If the secondary legislation is routine and does not require new policy decisions, the Minister may authorise drafting without reference to Cabinet;
- drafting by the Parliamentary Counsel Office;
- submitting the proposed secondary legislation to the Cabinet Legislation Committee and Cabinet for authorisation for submission to the Executive Council;
- notification in the New Zealand Gazette;
- a minimum 28-day period before the secondary legislation comes into force (see paragraphs 7.100 – 7.103 for further details on the 28-day rule); and
- publication by the Parliamentary Counsel Office on the legislation website.
7.96 Agency 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 secondary legislation and the date on which the secondary legislation comes into force, assuming all preceding steps have been completed satisfactorily.
7.97 It is increasingly common for the empowering Act and international treaties entered into by New Zealand to impose an obligation on those developing secondary legislation 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 secondary legislation 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.
7.98 The drafter of the secondary legislation will consider whether the secondary legislation is within the scope of the powers to make it granted by the Act. If proposed secondary legislation is not within these powers, restricts individual freedom unreasonably, or is otherwise undesirable from a legal perspective, the Parliamentary Counsel Office will notify the Attorney-General and the Minister and department concerned.
7.99 A small number of Orders in Council are drafted within agencies and submitted directly to the Executive Council (see paragraph 1.41). The principles set out in paragraphs 7.93 - 7.98 in relation to secondary legislation 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.
The 28-day rule
7.100 It is a requirement of Cabinet that secondary legislation made by Order in Council must not come into force until at least 28 days after it has 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.
7.101 There are some instances where secondary legislation does 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 the secondary legislation has little or no effect on the public, or confers only benefits on the public;
- where the secondary legislation is 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 secondary legislation being defeated; or
- where irregularities need to be validated.
See the CabGuide for further details on the 28-day rule.
7.102 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.
7.103 The drafter of the secondary legislation 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.
Publishing secondary legislation
7.104 All secondary legislation made by Order in Council must be published on the legislation website and notified in the New Zealand Gazette, as soon as it has been made. This is done by the Parliamentary Counsel Office. These are the minimum publicity requirements for new secondary legislation. Ministers and agencies should consider what other steps may be needed to give adequate publicity to a particular law change.