Client file

PCO Quarterly—the PCO's quarterly newsletter for instructing departments

The PCO Quarterly is intended for anyone involved in instructing the PCO.

To be added to the mailing list, please contact us giving your name, designation, agency, email address, and phone number.

Highlights from the PCO Quarterly:

• July 2008: Requests to convert XML documents into MS Word
• July 2008: Sunsetting Statutory Regulations
• July 2008: PCO submission to the Standing Orders Committee
• March 2008: The use of wiki-statutes
• March 2008: Notifying Statutory Regulations
• March 2008: Legislation Design Committee—issues arising in 2007
• March 2008: Legislation Advisory Committee—issues arising in 2007
• March 2008: Introducing the New Zealand Legislation website—www.legislation.govt.nz
• November 2007: New Chief Parliamentary Counsel appointed
• November 2007: How to supply forms and graphics to the PCO for publication in legislation
• October 2007: LAC Guidelines update
• July 2007: Retirement of George Tanner QC

Highlights from the latest issue:

Requests to convert XML documents into MS Word

The PCO has reviewed its occasional practice of providing departments with MS Word versions of legislative drafts prepared in XML (via Epic Editor, the new drafting tool used by the PCO). This is both time consuming for PCO staff and, because of the cutting and pasting required, can produce errors and omissions in the converted document.

In future, if a department requests an electronic copy of a draft, the PCO will be able to provide a PDF but will not produce an MS Word version. From the PDF, instructors can:

• copy from the PDF into their preferred format; or
• use a PDF editing tool to edit the PDF version.

Sunsetting Statutory Regulations

In December 2007 the Regulations Review Committee tabled a report on its" Inquiry into the ongoing requirement for individual regulations and their impact" (the report). The report featured eight recommendations, including the following:

• that the committee’s report be referred to the Law Commission for the development of a detailed proposal for the inclusion of a sunsetting system, applicable to all Statutory Regulations, in a statute
• statutory provision be made for a sunset system applicable to all Statutory Regulations reflecting the recommendations in the body of the report and any detailed proposal made by the Law Commission.

The Regulations Review Committee broadly agreed with the Legislation Advisory Committee’s submission proposing a system based on a ten-year expiry period, but with a one-year postponement period upon certification by the Attorney-General that this is required. The Legislation Advisory Committee proposed that:

• sunsetting apply to all Statutory Regulations initially, and later to all regulatory instruments
• sunsetting be included in a Legislation Statute (as proposed in the Law Commission paper Presentation of New Zealand Statute Law)
• a sunsetting period of ten years for new regulations and existing regulations be dealt with by staged repeal (that is, set dates for repeal of regulations made before a specified date)
• provision be made for rolling over regulations that are not redundant for a further ten years, possibly by certificate of the Attorney-General
• there be a Cabinet-directed requirement for ongoing departmental review, led by MED (to ensure ongoing review and not just review every ten years)
• the PCO administer the sunsetting system (providing, in particular, departmental liaison).

The Government’s response to the Regulations Review Committee recommendations, which was tabled on 7 March 2008 was that:

The Government considers that further work is necessary to evaluate the Committee’s recommendations before any decisions are made on a sunsetting system. The Government has directed the Ministry of Justice, in consultation with Parliamentary Counsel Office and other government departments as appropriate (in particular those departments with responsibility for a significant number of statutory regulations), and in collaboration with the Law Commission, to provide further advice to Cabinet by 31 December 2008 on:

• The inclusion of a sunsetting system, applicable to all statutory regulations, in a statute; and
• The implications of such a system on departmental resources and Parliamentary Counsel Office law drafting resources.

An inter-departmental working group (including the PCO) has been formed to assist the Ministry of Justice to report back to Cabinet by 31 December 2008 and is currently preparing a discussion paper on the subject of the sun-setting of regulations.

PCO submission to the Standing Orders Committee

The PCO sent a submission to the Standing Orders Committee on 16 June with 11 recommendations for improvements to the Bill-handling procedures of the House.

In particular, the PCO supported and reiterated the observation (No 22) made by the Legislation Advisory Committee in its October 2006 submission, that a refocusing of Committee of the whole House debates (SO 298) "would remove the pressures to structure Bills, artificially, in as few parts as possible (so making them less readable) to facilitate their passage through committee [of the whole stage]".

It is the PCO’s contention that this single change would enhance Parliamentary consideration of Bills and make for better structured statutes, and statutes that are more useable for those affected by the legislation.

The submission also recommended a change to SO 287 to make it clearer that a select committee may recommend that the Bill be, or not be, passed, or that it be determined by a personal vote and may recommend amendments to the Bill.

From earlier issues:

March 2008: The use of wiki-statutes

As part of the review of the legislative basis for policing in New Zealand, the review team employed a wiki "Policing Act 2008" (launched in September 2007) as one method of involving the public. This is a web-based format which has been used and developed particularly through the Wikipedia websites. The essence of the "wiki" approach is that it provides a collaborative open format that enables visitors to write and edit content at will. It is important, in the context of the policing review, that this website was only one of the many ways in which the review sought to engage with stakeholders and the wider public, and occurred relatively late in the history of the review process.

This mode of communication has some significant limitations, as those responsible for the Wikipedia site indicate. Since the system works by "overwriting", that is, a later contribution overrides an earlier contribution on the same subject, it can lead to perverse content and a lack of coherence or consistency of content and style at any particular time. As those responsible for administering the Wikipedia site note, it also requires active website management:

In particular … articles … frequently contain significant misinformation, unencyclopedic content, or vandalism. Users need to be aware of this to obtain valid information and avoid misinformation that has been recently added and not yet removed. (source:http://en.wikipedia.org/wiki/Wikipedia:About)

Indeed, reading the Wiki Policing Act 2008 site from England prior to taking up my post here in November 2007, I and my parliamentary drafting colleagues in London were "intrigued" by some of the interpretation provisions appearing under the headings of "Commissioner" and "Deputy Commissioner" of police. Some were clearly awaiting "moderation" by those responsible for managing the website!

This slightly lighthearted comment does reveal a serious shortcoming of the wiki approach: for a participant in an official consultation process it is important to know that participation is meaningful and that contributions will not simply be "lost" in an active overwritten format.

More significantly, however, from a legislative drafting standpoint it is important that the wiki-Act (or preferably wiki-Bill) model does not appear too soon in a consultation exercise, is not seen in any way as determinative of content and style, and is carefully managed. Taking these in turn:

First, since the wiki-Bill approach already provides an approximation of a legislative framework for contributors to amend, if used too early in the process it risks constraining public consultation on policy options within the necessarily constricted and precise format required by legislation. This means that non-statutory options and general discussions about principles and policy can be unintentionally excluded or constrained—after all, not everyone thinks and writes with the precision required of a legislative drafter!

Secondly, contributors cannot be expected to know and work within the legal, procedural, and policy constraints that apply when the Parliamentary ounsel Office draft Bills, notwithstanding that our website provides access to, among other guidance documents, the important Legislation Advisory Committee Guidelines on Process and Content of Legislation. It is crucial therefore that administrators of wiki-Bill sites make it clear that drafting of any government Bill that might follow decisions made by Cabinet will not necessarily reflect any of the content and style in the wiki-Bill. An exposure draft of a government Bill remains the appropriate mode for releasing draft legislation for public consultation, and the wiki-Bill should not be seen as an alternative.

Thirdly, careful management is required, not only to take down offensive content but also to record, in a useful way, the many different (and often conflicting) contributions to ensure that the participation process is truly recorded. Inevitably, ending with a "final" wiki-Bill version involves considerable editorial control being exercised by those running the process, and providing that version to a select committee without the other contributions could be misleading.

As the media release for the Policing Act wiki noted: "Launching a wiki version of a statute is a novel move, but one we hope will yeild [sic] a range of views from people interested in having a direct say on the shape of a new Policing Act."

What might be equally novel, and arguably more useful in policy formulation terms, would be to use a "wiki-policy-issues paper" early on in the policy formulation process rather than a wiki-Bill after policy work has already occurred.

I should be very grateful if departments could consult the PCO if they are considering launching a wiki-Bill as part of their public consultation process.

David Noble
Chief Parliamentary Counsel

March 2008: Notifying Statutory Regulations

See Notifying Statutory Regulations for full details.

See also the form: Notification of non-Executive Council Statutory Regulations: PDF format (236KB), Word format (24KB)

March 2008: Legislation Design Committee—issues arising in 2007

The function of the Legislation Design Committee (LDC) is to advise and assist departments in the development and design of legislation and in other issues relating to instrument choice, preferably at an early stage of policy development. It meets as often as required, often monthly.

Departments are encouraged to refer draft legislative proposals to the LDC where they:

• are significant in terms of their scope
• involve complicated legislative design issues
• require an innovative approach
• are likely to raise issues about the overall coherence of the statute book.

In its first year of operation, the LDC examined and commented on more than a dozen separate legislative matters. These matters covered a diverse range of subjects, such as affordable housing, emissions trading, food, immigration, major events marketing, and public health. Some of the legislative issues and questions that arose in the LDC’s work last year are mentioned below.

Design

Design is likely to be an issue with large pieces of new legislation. Put yourself in the position of someone affected by the legislation (such as the owner of a fish and chip shop), and try to navigate your way around the provisions that affect you. Can you identify whether the legislation applies to you in particular circumstances, your obligations and rights, who administers and enforces the legislation, and penalties for non-compliance?

Design can also be an issue with amending legislation. How does the amendment fit with the principal legislation? Should there be re-enactment of the principal statute, including the amendments, to ensure that the law is accessible and intelligible to the public?

Key definitions

Clear and effective definitions are critical to the success of legislation. Often it is the definitions that determine whether the legislation applies to a person or to particular circumstances. Do the definitions actually define the terms concerned or do they rely on some person or authority (such as the Governor-General in Council) to perform that function?

Relationship to existing law

Does the legislation make use of existing law? For example, if the legislation deals with activities that have an environmental impact, are the mechanisms in the Resource Management Act 1991 to apply or are new mechanisms invented?

Functions

Who is to carry out functions under the legislation? If persons are to be appointed to offices under the legislation, who appoints them? Are the various offices to be within or outside the public service?

Appeals and reviews

Are the appeals and reviews under the legislation to be heard by a person or body who is neutral and independent? If an entity such as a board is to hear the appeal or review, why is that entity more appropriate than a court? Similarly, if the legislation provides for the chief executive of a department to hear appeals or reviews against decisions of his or her own delegates, is this appropriate?

Offences and penalties

The LDC has seen a broad range of offences and penalties in the proposals that have come before it, including civil penalty regimes. Offences and penalties should be consistent with the New Zealand Bill of Rights Act 1990 and be reasonable. The choice and appropriateness of offences and penalties, and of enforcement mechanisms generally, will be of interest to the LDC.

Regulations and incorporation by reference

What does the legislation leave to be done by regulations? Will draft regulations be available to the LDC? If material is to be incorporated by reference, do the relevant provisions follow the Legislation Advisory Committee’s standard clauses on incorporation by reference?

Legal risk to the Crown?

Does the legislation place any legal risk on the Crown? If so, what is the nature of the risk? There will be particular interest in any litigation risk to the Crown that could arise from the legislation.

March 2008: Legislation Advisory Committee—issues arising in 2007

The Legislation Advisory Committee (LAC) meets on a monthly basis. A regular agenda item is the scrutiny of all recently introduced Government Bills. Reports are prepared for the LAC that assess whether those Bills comply with the LAC Guidelines, and the committee may decide to make formal submissions on those Bills or invite officials to attend to discuss any public law concerns or issues raised by members.

Some common themes coming out of discussions of recent Bills include the following:

• A strong preference for new Acts instead of substantial amending legislation. Where the amending legislation is more than half the length of the primary legislation, it is likely that a preference for rewriting the legislation will be expressed by the committee.
• A preference for matters affecting court procedure (particularly civil procedure) to be left to rules of court, and that any appeal provisions be consistent with and rely on the relevant provisions and procedures in the District Courts Act 1947, the Judicature Act 1908, and the associated rules of court.
• A dislike of legislation that gives administrators or courts a menu of options/remedies, which confers a great deal of discretion as to what type of remedy is pursued. A more prescriptive approach is preferred that spells out in more detail either rules or guidance as to when particular options may be exercised, according to the seriousness of the conduct or other criteria, and that clearly spells out the interrelationship between civil and criminal remedies.
• A suspicion of provisions that enable an Order in Council to vary, add to, or override primary legislation. However, there is some acceptance of sunsetted transitional regulation-making powers and the use of Orders in Council to vary technical lists in schedules.
• A dislike of provisions that appear provisional in character (eg broad regulation-making powers conferred because "we are not really sure what we want to achieve at this point but we need to do something in a hurry").
• A suspicion of provisions that allow exemptions from obligations under primary legislation, particularly when the power to exempt is broad or is not qualified by conditions or criteria, or the criteria are vague. Such provisions may indicate that the legislation is provisional in character, and has not adequately been thought through in sufficient detail.

March 2008: Introducing the New Zealand Legislation website—www.legislation.govt.nz

The New Zealand Legislation website, the culmination of the Public Access to Legislation Project, was launched on 16 January 2008 by the Attorney-General.

"Providing public access to legislation is an important step in improving public engagement with the legislative process," Dr Cullen said. "New Zealanders have a right to know what’s on our statute books and the government has an obligation to make that as easy as possible."

The website has been welcomed by users, who appreciate its more powerful searching, its timeliness, and the ability to print PDFs. Helga Arlington, Librarian at the Auckland District Law Society (ADLS) Library and Research Centre, in the 22 February 2008 edition of the ADLS journal, described the site and the access it provides as "a huge leap forward for New Zealand".

The Legislation System that drives the website provides the tools for both drafting and publishing legislation. This system went into production within the PCO in November and, after a transition period, is now being used for all drafting and publishing work.

As the library of legislation on the website is built up over time, the website will show legislation at all its different stages—from a Bill as introduced, through each stage during its passage through Parliament, to an Act as originally passed, to an Act as it is amended over time, to a repealed Act.

Bills are published on the website the day after either introduction or when they become available in the House, new Acts are published within five days of Royal assent, and new regulations the day after gazettal. Consolidated legislation becomes available within three weeks of the amending legislation being published. Alert messages notify users of amendments not yet incorporated within five days of publication of the amending legislation. This is a significant step forward from the Interim Website.

Users can search across Acts, Bills, and Regulations, both separately and together, and have various options for narrowing down their search. Legislation is available in both HTML and PDF formats. An RSS feed keeps users up to date with amendments.

The legislation is not yet official, but is being systematically checked for accuracy ("officialised") as the first step towards making it an official source of New Zealand legislation.

Work also continues on ongoing enhancements, to improve searching and browsing performance in the light of usage patterns.

Help on using the website is provided by the About, Guide, and Glossary sections.

November 2007: New Chief Parliamentary Counsel appointed

David Noble was appointed as Chief Parliamentary Counsel on 5 November, taking over from Ian Jamieson. David joins the PCO from England where he was a Director in the Treasury Solicitor’s Department, Chief Legal Adviser to the Department for Children, Schools & Families, and Chief Legal Adviser to the Department for Innovation, Universities & Skills. He has previously worked in the UK Attorney General’s Office and in the European Commission where he was responsible for drafting European Union-wide legislation. On joining the PCO, David said: "I am very pleased and honoured to have been appointed to this role. This is an exciting time for the PCO with the culmination of the development work on the Public Access to Legislation Project and the changes this will bring to the work of the Office. I am also very much looking forward to meeting the clients of the PCO in the coming weeks and months, getting to know them and understanding their requirements."

November 2007: How to supply forms and graphics to the PCO for publication in legislation

See Production of forms and graphics for publication in legislation for full details.

October 2007: LAC Guidelines update

The Legislation Advisory Committee Guidelines on Process & Content of Legislation (LAC Guidelines), a publication endorsed by Cabinet, provides essential guidance for everyone involved in preparing and considering legislation. When a Bill is submitted to the Cabinet Legislation Committee, one of the required steps is indicating whether the Bill complies with the LAC Guidelines. However, it is important to consider whether the proposed Bill will comply much earlier in the process than this. Instructions should be checked against the guidelines before they are submitted to the PCO.

A subcommittee of the LAC chaired by Professor John Burrows QC has been updating the LAC Guidelines, with assistance from Parliamentary Counsel. The most recent additions have been to Chapter 7, on savings and transitional provisions, to Chapter 10, on delegated legislation, and a new Chapter 18, on alternative dispute resolution (ADR).

The guidelines are available at www.justice.govt.nz/lac/index.html.

Savings and transitional provisions

The LAC Guidelines contain a new section on savings and transitional provisions. It is Part 4 of Chapter 7, which is about the relationship of a legislative proposal to existing law.

Part 4 is headed "Are savings or transitional provisions required?" It starts by defining what savings and transitional provisions are, although it makes the points that the distinction between the two is very fine and that it makes no legal difference whether a provision is, when fully analysed, a savings or a transitional provision.

Part 4 then goes on to describe the four-step process that policy analysts should adopt when working on the savings and transitional aspects of a legislative proposal. The steps are easy to follow and have extracted the principles from the relevant case law. Policy analysts and departmental solicitors should find Part 4 a good practical guide in an often difficult area.

Delegated legislation

An updated and expanded Part 1 of Chapter 10 of the LAC Guidelines deals with the distinction between primary and delegated legislation and includes an overview of the justifications for using delegated legislation.

The matters that should ordinarily be included only in primary legislation are listed as including matters of significant policy, provisions that affect fundamental human rights and freedoms, rights of appeal from decisions of courts and other tribunals, provisions that vary the common law, provisions creating serious offences and serious penalties, provisions that levy taxes, and provisions that create new agencies and offices. Examples of legislation falling within each of these categories are provided.

The question of whether matters may be included in delegated legislation depends on the traditional justifications for Parliament delegating its law-making powers, namely pressure on parliamentary time, technicality of the subject matter, the need to deal with unforseen contingencies, the need to be flexible, the opportunity for experimentation, and the ability to deal with emergency conditions requiring speedy or instant action. Each justification is considered separately, and examples of delegated legislation based on each of the justifications are provided. A reference to the Regulations Review Committee Digest (a Victoria University of Wellington publication, available at www.victoria.ac.nz/NZCPL/Regs_Review/Index.aspx) is included. This digest includes extremely useful summaries and discussions of the Regulations Review Committee reports.

The new Part 1 also discusses matters that may be included in either primary or delegated legislation and sets out a number of considerations that "will rarely (if ever)" justify the use of delegated legislation, including "that it’s always been done this way"!

The new Part 1 discusses empowering provisions, the so-called "Henry VIII clauses", and commencement provisions, and provides a useful set of guidelines, which briefly summarise the new Part.

Alternative dispute resolution clauses in legislation

The impetus for including the new Chapter 18 in the LAC Guidelines was a recognition that in many contexts there is a policy move towards requiring alternative dispute resolution (ADR) measures as an alternative, and sometimes a necessary first step, before disputants may go to Court. The input to this chapter from practitioners specialising in ADR is seen as important in helping to ensure that legislative requirements reflect a principled approach and best practice in ADR.

The chapter sets out guidelines for determining:

• whether to include ADR provisions in any particular statutory framework
• if the inclusion of ADR is indicated, the various processes that may be considered
• guidelines for choosing a particular process, including the important issues to be taken into account such as the balance of power likely to arise between the parties in the particular context.

A survey of ADR provisions in the New Zealand statute book indicated a degree of inconsistency in practice. The most glaring issue is the inconsistent use of terminology. The chapter therefore provides definitions of the various processes commonly in use for ADR. These definitions are consistent with the approach adopted in Great Britain and Australia. They cover facilitative, evaluative, and determinative processes.

The chapter then moves to suggest the important considerations for policy makers charged with including ADR in the statute being planned; this is a fairly common imperative as a means for "keeping the lawyers out of it"! The use of ADR in dispute situations is also recognised as potentially serving the needs of parties more effectively than litigation.

A link to the Client file section of the PCO website takes you to some model clauses prepared as a guide to providing the minimum process requirements in a statute where a mediation process is provided for.

Finally, the chapter sets out references to a selection of statutory clauses where ADR is prescribed. Is any of your agency’s legislation in those lists? How does it stack up?

July 2007: Retirement of George Tanner QC

On 30 June, George Tanner QC retired from the post of Chief Parliamentary Counsel and Compiler of Statutes, which he has held since August 1996. George joined the PCO in 1981 as Parliamentary Counsel. Of his many achievements as a drafter, his work on the companies law package stands out. This major reform centred on what became the Companies Act 1993, but included more than 20 other separate Bills. George’s drafting on this complex material was outstanding, and foreshadowed his later commitment to clear drafting. Since becoming chief, George has made a great contribution to the New Zealand statute book through his work on improving clarity in language, structure, and format. His close relationship with the Law Commission has borne fruit particularly in this area. He has also guided the PCO into closer relationships with the Legislation Advisory Committee, the Legislation Development Committee, the judiciary, and with drafting offices around the Pacific and the Commonwealth. George has led the PCO through many changes, modernising its structures and procedures. He has championed the Public Access to Legislation Project throughout. He leaves the PCO an organisation that provides a better service, both proactive and responsive, to the Government, agencies, and public of New Zealand. And he will be greatly missed by the staff of the PCO. After a couple of months’ break, George will take up a new role with the Law Commission.