1 Cabinet has agreed to the inclusion of a Statutes Amendment Bill in the 2016 Legislation Programme with the intention that it be introduced in March 2017 This circular sets out the process for developing the Statutes Amendment Bill and replaces Cabinet Office Circular
CO (15) 2.
- Departments are to submit potential items for inclusion in the Bill (as approved by the portfolio Minister) to the Ministry of Justice by 29 July (see paragraphs 8 to 13 for the steps to be followed).
- Departments are to send drafting instructions to the Parliamentary Counsel Office by 31 August (see paragraph 16).
The nature and content of the Bill
2 Statutes Amendment Bills are designed as vehicles for technical, short, and non-controversial amendments to a range of Acts [refer paragraph 7.64 of the Cabinet Manual] Amendments proposed for inclusion in a Statutes Amendment Bill should meet all three of these criteria.
In determining whether an amendment/s meets the above criteria, consider the following:
- “technical” should be given its natural meaning An amendment that reflects a substantial change in policy or substantially amends the principal Act is not “technical”;
- “short” is an objective test A proposed amendment that spans several pages is not “short” for the purposes of a Statutes Amendment Bill;
- “non-controversial”, although a subjective test, should be interpreted with awareness of relevant history or implications An amendment that has previously failed in Parliament, or is anticipated to generate debate or controversy with stakeholders or the wider community, is unlikely to be “non-controversial”.
3 It is important that all elements of the Bill are appropriate for inclusion in this type of Bill and that they have been the subject of prior consultation with all parties in the House If any Member of Parliament objects to a clause of a Statutes Amendment Bill during its consideration by the committee of the whole House, it will be struck out of the Bill [Standing Order 301(2)] The aim is to avoid this by engaging in full, cross-party consultation before including clauses in the Bill.
4 The Statutes Amendment Bill will comprise items approved by any Minister (or identified by Cabinet) which involve technical, short and non-controversial amendments to Acts relevant to the Minister’s portfolio area For proposals to come within the scope of a Statutes Amendment Bill they must consist entirely of amendments to an Act or the repeal (without replacement) of an existing Act Consequential amendments, consequential repeals, application provisions, and savings and transitional provisions are permissible Stand-alone provisions, including the creation of a new principal Act, are normally ruled out Amendments that the portfolio Minister considers require policy consideration by a Cabinet committee or by Cabinet will almost certainly be unsuitable, as will those requiring in-depth discussion by party caucuses.
5 A finite allocation of drafting time has been made for the preparation of the Bill and for its support through the House The deadlines outlined in paragraph 1 must be met to ensure proposed amendments can be included in the Bill Proposed amendments not meeting the deadlines may be submitted for inclusion in any later Statutes Amendment Bill.
The process for developing the Bill
Roles of Ministers and departments
6 Individual departments are responsible for identifying and developing amendments to Acts they administer Portfolio Ministers will approve potential amendments within their portfolio areas and undertake any necessary consultation with their own party caucus.
7 The Associate Minister of Justice (Hon Simon Bridges) is the Minister in charge of the Bill and will co-ordinate the inclusion of items in the Bill and the cross-party consultation process The Ministry of Justice will co-ordinate the administrative aspects of the development of the Bill Departments should liaise with the Ministry of Justice co-ordinator in the first instance (Nick Kokay, Policy Advisor, Ministry of Justice, ph 494 9810; email firstname.lastname@example.org).
Identify potential amendments
8 The first step is for a department to identify amendments that it considers appropriate for inclusion in the Bill and clear these as appropriate with other departments with a direct interest Departments must be satisfied that proposed amendments are technical, short and non-controversial and otherwise consistent with the content requirements described in paragraphs 2 to 4 In identifying potential amendments, departments should consult their legal departments.
9 Departments may, at an early point in the process, like to contact the appropriate drafting team leader in the Parliamentary Counsel Office to discuss whether potential amendments for inclusion in the Bill are suitable.
Obtain approval of portfolio Minister
10The second step is for the department to brief the Minister responsible for the principal Act and obtain that Minister’s approval for the proposed amendment and for the proposal to proceed to cross-party consultation The department’s briefing to the portfolio Minister should include the following documents, templates of which are available from the Ministry of Justice co-ordinator:
10.1a letter from the portfolio Minister to the Minister in charge of the Bill seeking to include the proposed amendment in the Bill This letter should provide contact details for two officials in the department responsible for the proposed amendment who will be the contact persons for the Ministry of Justice co-ordinator These contact persons should be able to respond to queries on the substance of the proposed item; and
10.2an attachment on Ministerial portfolio letterhead clearly citing in full the sections of the principal Act proposed to be amended, and providing information on the proposed amendment and the reasons for it This attachment should provide contact details for a private secretary in the portfolio Minister’s office who will be the contact person for all parliamentary parties This contact person must be able to respond to queries on the substance of the proposed item.
11The attachment referred to in paragraph 10.2 is designed to go under a covering letter from the Minister in charge of the Bill to the leader of each parliamentary party seeking support for all the proposed amendments.
12The portfolio Minister will need to undertake consultation with his or her own party caucus, as necessary, in the normal way.
Provide information to Ministry of Justice
13The third step is for departments to provide all relevant briefing material and correspondence, once approved and signed by the portfolio Minister, to the Ministry of Justice by 29 July (Nick Kokay, see contact details in paragraph 7) The Ministry of Justice will brief the Minister in charge of the Bill on all proposals tendered by portfolio Ministers, on an aggregated basis.
Parliamentary parties consulted
14The cross-party support process is co-ordinated through the Minister in charge of the Bill The fourth step is for the Minister in charge of the Bill to send a letter to each parliamentary party seeking its support for the proposed amendments. Letters will be sent to parliamentary parties by 18 August to be returned to the Minister in charge of the Bill by 15 September.
15Each letter will be accompanied by a set of attachments from the portfolio Ministers setting out the details of the proposed amendments. The recipients of the letters will be asked to direct queries on the substance of the proposed amendments to the office of the relevant portfolio Minister, and to finally respond to the Minister in charge of the Bill indicating their support or otherwise for the amendments.
16The Ministry of Justice will notify departments and the Parliamentary Counsel Office of the outcome of the consultation process.
Submit drafting instructions to Parliamentary Counsel Office
17The fifth step is for the department to send drafting instructions to the Parliamentary Counsel Office drafting team leader responsible for the department’s drafting by 31 August [refer to paragraphs 7.46 and 7.49 of the Cabinet Manual which relate to the role of the drafter and drafting instructions].
Drafting by the Parliamentary Counsel Office
18The sixth step is for the Parliamentary Counsel Office to draft the Bill. The Parliamentary Counsel Office will not begin drafting any amendment until confirmation of support from all parties has been obtained. To ensure the Bill is drafted for introduction and able to be passed in 2017, confirmation needs to be received by 22 September.
19Parts of the Bill, when drafted and settled with instructing departments, are sent by Parliamentary Counsel to the Ministry of Justice, which will organise for the proposals to be vetted for consistency with the provisions of the New Zealand Bill of Rights Act 1990.
Timing of introduction
20The intention is to finalise the Statutes Amendment Bill for introduction in March 2017.
Future Statutes Amendment Bills
21It is proposed that a similar timetable be followed for a Statutes Amendment Bill in 2017 and future years.
Secretary of the Cabinet
Nick Kokay, Ministry of Justice
Ph: (04) 494 9810
Gerrard Carter, Legislation Co-ordinator, Cabinet Office
Ph: (04) 817 9309