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Cabinet Office circular

CO (14) 4: Attorney-General's Protocol for Release of Draft Government Legislation outside the Crown

Issue date: 
Monday, 21 July 2014
Issue status: 
Current
Version note: 

Intended for:

  • All Ministers
  • All Chief Executives
  • All Senior Private Secretaries
  • All Heads Of Legal

 

1On 23 June 2014 Cabinet approved the Attorney-General's Protocol for Release of Draft Government Legislation outside the Crown (LEG Min (14) 12/1).

2The Protocol is annexed to this Circular.

3Section 61 of the Legislation Act 2012 confirms the long-standing position that draft legislation prepared by, or on behalf of, the Parliamentary Counsel Office is subject to legal professional privilege.

4Legal professional privilege in draft legislation lies with the Attorney-General as the principal law officer of the Crown. It is for the Attorney-General to determine whether to release draft legislation outside the Crown and, as a consequence, potentially waive legal professional privilege.

5The Protocol supplements existing guidance contained in paras 4.58 to 4.68 of the Cabinet Manual 2008, and makes clear when the Attorney-General’s approval must be sought for the release of draft legislation outside the Crown.

6Cabinet Office Circular CO (05) 5 (incorporated into paras 4.58 to 4.68 of the Cabinet Manual 2008) is cancelled.

Michael Webster
Secretary of the Cabinet

Enquiries:

Andrea King
Crown Counsel (Policy), Crown Law Office
Ph: 494 5938
andrea.king@crownlaw.govt.nz

Andrew Townend
Legal and Constitutional Adviser, Cabinet Office
Ph: 817 9741
andrew.townend@dpmc.govt.nz

Introduction

1The Minister responsible for draft Government legislation must approve its release outside the Crown in all circumstances. The Attorney-General must also approve the release of draft Government legislation outside the Crown.

2The Attorney-General has agreed that draft Government legislation may be released outside the Crown in certain circumstances without further reference to him. This protocol guides departments on when the Attorney-General’s consent to release need not be sought.

Definitions

3For the purposes of this protocol:

3.1Crown means Ministers of the Crown, the departments of the public service as specified in the First Schedule to the State Sector Act 1988, the New Zealand Police, the New Zealand Defence Force and the New Zealand Security Intelligence Service;

3.2Chief Legal Adviser includes a legally qualified senior official who is designated by the department to undertake the functions outlined in this protocol;

3.3Draft Government legislation means Bills, legislative instruments, and other instruments drafted by or on behalf of PCO.

Background to the protocol

4Draft Government legislation prepared by or on behalf of the Parliamentary Counsel Office (PCO) is subject to legal professional privilege (Legislation Act 2012, section 61).

5Legal professional privilege in draft Government legislation lies with the Attorney-General as the principal legal officer of the Crown (Cabinet Manual (2008), paragraphs 4.58 to 4.68).

6The Attorney-General has the right to consider questions of legal risk and to determine whether to release draft Government legislation outside the Crown and, as a consequence, potentially waive legal professional privilege (Cabinet Manual (2008), paragraphs 4.65, 4.66 and 4.67).

When Attorney-General approval is required

7A proposal to release draft Government legislation outside the Crown must be referred to the Crown Law Office and needs the approval of the Attorney-General’s office if —

7.1release may affect current or potential legal proceedings; or

7.2release may otherwise create a legal risk for the Crown; or

7.3there is uncertainty whether release will create a legal risk for the Crown.

8When referring the question of release to Crown Law departments should consider and provide their views on the factors listed under paragraph 11 as they will inform Crown Law’s advice to the Attorney-General on release.

When Attorney-General approval is not required

9A proposed release of draft Government legislation outside the Crown need not be referred to the Crown Law Office and does not need the approval of the Attorney-General’s office if:

9.1release will or may constitute waiver of legal professional privilege but the Chief Legal Adviser of the department responsible for the legislation confirms the release will not create a legal risk for the Crown; or

9.2the draft legislation will be released to a small, pre-determined group outside the Crown on an in-confidence basis and subject to legal professional privilege and the Chief Legal Adviser of the department responsible for the legislation confirms the release will not create a legal risk for the Crown.

10Legal professional privilege is not waived when draft Government legislation is released to a small, pre-determined group outside the Crown on an in-confidence basis and subject to legal professional privilege. However, departments may instruct PCO to put a note on the draft legislation reinforcing this point, to the effect that the limited release of this draft legislation is not a waiver of legal professional privilege.

Considerations for release and reference to Crown Law/Attorney-General

11In considering whether the proposed release of draft Government legislation needs to be referred to the Crown Law Office for reference to the Attorney-General’s office, the Chief Legal Adviser of the department responsible for the legislation must consider—

11.1the reasons why release outside the Crown is sought, and the strength of those reasons;

11.2whether release outside the Crown will create a legal risk for the Crown;

11.3whether the legislation is being drafted at the request of, or in consultation with, non-Crown bodies (for example, Commodity Levies Orders that are prepared at the request of industry bodies);

11.4whether the policy or details underlying the legislation are already in the public arena;

11.5the sensitivity of the subject matter of the draft legislation.

12A department that does not have a Chief Legal Adviser should always refer draft legislation to the Crown Law Office to consider the question of release.

Application of the protocol

13This protocol does not apply to:

13.1draft legislation that is prepared by PCO for a client that is outside the Crown. In this situation, legal professional privilege and the right to determine whether to release draft legislation and, as a consequence, potentially waive the privilege lies with the third-party client.

13.2proposed wording for new or amended legislative provisions that a department prepares for consultation purposes as part of the policy development process. Such wording is not prepared by or on behalf of PCO and should not be considered draft legislation for the purposes of this protocol.

14It is good practice, when seeking Cabinet’s policy approval for legislation, to obtain Cabinet’s approval to any proposed release of the legislation in draft. That approval does not replace the need to consider whether the Attorney-General’s consent to the release of legislation is required in accordance with this protocol.

15Requests under the Official Information Act 1982 will continue to be dealt with (even if they involve waiving Crown legal professional privilege) under paragraph 4.68 of the Cabinet Manual (2008).

16Legal professional privilege in drafting instructions is not waived simply as a consequence of the release of draft legislation. The release of drafting instructions will continue to be dealt with under paragraph 4.65 of the Cabinet Manual (2008).

Last updated: 
Thursday, 16 March 2017

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