The need for Executive Council action on a particular matter will be indicated in the relevant statutory provision by the words “in Council” (i.e. “the Governor-General in Council” or “by Order in Council”).
Matters that require action by EC are as follows:
- regulations (which are made by Order in Council)
- other Orders in Council
- warrants setting up Royal Commissions and Orders in Council appointing commissions of inquiry
- various appointments, including chief executives of government departments.
Most of the items that are submitted to EC are confirmed by Cabinet first in conjunction with Cabinet and Cabinet committee papers (usually considered by the Cabinet Legislation Committee), and are drafted by the Parliamentary Counsel Office (PCO). PCO certifies draft regulations as fit for submission to Cabinet. It is expected that Ministers’ offices will upload the most recent draft version of the regulations when the related Cabinet paper is lodged through CabNet by the usual 10am Thursday deadline.
PCO provides the hardcopy signature copy and emails the Cabinet Office with the PDF of the final version of the legislation with an accompanying email that sets out the certification details. If there are timing issues, i.e. if the final, certified regulations cannot be provided by the 10am Thursday deadline, PCO must contact the relevant Cabinet committee secretary in the Cabinet Office (use the PSI contact page). Note: PSI is only available to public sector agencies.
If the EC item is drafted by a department, it must have a covering memorandum signed by the department’s office solicitor, to be attached at the time that the item is submitted to CabNet with a related paper. The memorandum must state that the item is ready to be submitted directly to EC, certify that the item is ready for signature, and note any other relevant information.
Once the EC documents have been signed by the Governor-General, they will be returned to the Minister’s office by the Cabinet Office. The Cabinet Office will arrange for the making of regulations or Orders in Council to be notified in the Gazette. Departments need to arrange a separate notice if further details need to be gazetted.
Accompanying documentation for regulations going to the Executive Council
The following documents should be submitted to the Cabinet Office in conjunction with the related Cabinet or Cabinet committee paper, either in hard copy or as an attachment to the uploaded paper, as specified below:
- a signature copy of the regulations (generally provided directly to the Cabinet Office by PCO): if the item was drafted by PCO, the signature copy will be printed on buff coloured, high-grade paper, and must be submitted in hard copy by PCO
- a certified copy of the regulations: if the item was drafted by PCO, it will come with an endorsement that it is certified in order for submission to Cabinet, and be signed by a Parliamentary Counsel (this version is normally provided to the Cabinet Office directly by PCO). If the item was drafted by a department, the office solicitor must certify it as being in order for submission to Cabinet. Certified copies may be uploaded as attachments to the paper by the Minister’s office
- standard copies of the regulations:
- for regulations drafted by PCO: the originating agency or the Minister’s office will upload the regulations as attachments to the paper in CabNet, where the regulations are less than 35 pages. PCO will need to provide the Cabinet Office with 35 hard copies of regulations that are over 35 pages (in addition to the uploaded copy) to attach to the printed version of Ministers’ papers
- for non-PCO drafted regulations: the originating agency or the Minister’s office will upload the regulations as attachments to the paper in CabNet, where the regulations are less than 35 pages. The Minister’s office will need to provide the Cabinet Office with 35 hard copies of legislation that is over 35 pages (in addition to the uploaded copy) to attach to the printed version of Ministers’ papers
- an advice sheet (also known as a "goatskin"): This is prepared by the department and/or the Minister’s office, and must be submitted to the Cabinet Office in hard copy. The advice sheet is a printed form on buff-coloured, high-grade paper (known as “goatskin”, which can be obtained from most printers).
- the advice sheet must be signed by the Minister, with the Minister’s title typed below the signature. It cannot be the title of an Associate Minister, even if the Associate Minister has delegated authority
- the advice must come from the Minister provided for in the Act. Another Minister can sign “for” the portfolio Minister, above the portfolio Minister’s title, writing the “for” next to the Minister’s title.