This is a single section from Chapter 14. Read the full chapter here.

Is the secondary legislation subject to appropriate safeguards?

All secondary legislation should be subject to an appropriate level of scrutiny, a good process, publication requirements, and review.

Safeguards provide a vital check on the exercise of the delegated power to promote:

  • a good law-making process (through, for example, requirements to have regard to certain matters or being satisfied that a test is met);
  • transparency (through transparent processes and decisions);
  • participation (through consultation or requiring confirmation, concurrence, or consent); and
  • accountability (through, for example, disallowance via the RRC).

Safeguards can take a variety of forms. They can be substantive preconditions or procedural requirements. They can apply before a power is exercised or provide a remedy after it is exercised.

Safeguards are not, however, a substitute for clearly and precisely defining the permitted subject matter of the secondary legislation and the purposes for which it may be made (see 14.2). Safeguards are not a sufficient remedy for a vague and sweeping empowering provision that gives the decision maker too much discretion.

Standard safeguards that generally apply to secondary legislation under the Legislation Act 2019 are:

  • presentation to the House – this ensures Ministerial accountability and is an essential part of ensuring Parliament can scrutinise what is done with the power it has delegated; and
  • review by the RRC and potential disallowance by Parliament; and
  • publication (if the legislation is drafted by the PCO, the legislation must be published in full on the New Zealand legislation website. If the legislation is not drafted by the PCO, the maker must comply with the applicable publication requirements under the Legislation Act 2019 – for empowering provisions created on or after 2021, these are generally set out in the Legislation (Publication) Regulations 2021).

There are limited classes of cases where the standard presentation and disallowance safeguards do not apply (see sections 114 and 115 of the Legislation Act 2019). Specific presentation and disallowance exemptions can be added to Schedule 3 of that Act, but these exemptions will need to be carefully justified to the RRC. (In the case of publication, exemptions or alternative forms of publication can be added to the Legislation (Publication) Regulations 2021).

In the case of publication, the need for an exemption may be justified if the sensitivity of the information will make it inappropriate to publicly disclose it (for reasons such as commercial sensitivity, safety, or national security). The threshold to justify exemptions from publication is high given that secret law undermines the rule of law and Parliament’s oversight. 

Even if an exemption is justified, it should generally only involve the minimum exemptions (for example, a deferral of publication of commercially sensitive secondary legislation while the information remains commercially sensitive).

If a publication exemption is justified, a presentation exemption may also be appropriate. However, it needs to be separately justified on the basis that presentation to the House would create an unacceptable risk of undermining the publication exemption (taking into account the particular nature of how information is disclosed if it is presented to the House).

Exemptions from disallowance need to be justified on a case-by-case basis. To date, the RRC has not supported any general principles justifying these exemptions since they undermine the residual authority of Parliament to oversee its delegation.

One rare scenario that may justify a disallowance exemption is if Parliament intends the maker of the secondary legislation to act without any Parliamentary oversight. An example is the setting of judicial or parliamentary salaries by the Remuneration Authority. In a subset of these cases, a presentation exemption may also be justified as presentation is a symbolic act of accountability to the House.

Additional safeguards apply automatically to secondary legislation that is made by the Governor-General by Order in Council. It must be drafted and certified by the PCO, will receive Cabinet scrutiny, and will be subject to the Cabinet Manual’s 28-day rule (meaning that the legislation must not come into force earlier than 28 days after its notification in the Gazette, unless there is a waiver).

Other bespoke safeguards may also be appropriate. However, these can increase the complexity of the process (particularly the time and cost) and so need to be carefully designed to ensure that the benefits are captured without too much cost. Examples of these safeguards include:

Pre-making safeguards:

  • The instrument may be made only on the recommendation of a Minister (or on the recommendation, approval, confirmation, concurrence, or consent of some other person). For example, Orders in Council are always made on the recommendation of a Minister (regardless of whether the empowering provision provides for this).
  • Other preconditions may be included – either substantive tests or criteria or procedural requirements:
    • The decision maker itself may be required to have regard to certain matters or be satisfied that a certain test is met.
    • If the approval or recommendation of another person is required, safeguards may also be attached to that approval or recommendation (for example, the recommending Minister may be required to consult with certain people before making the recommendation, to have regard to certain principles or other matters, or to be satisfied that certain criteria are satisfied).
    • Certain things may need to be shown, or certain circumstances may need to exist, before the secondary legislation is made.
    • Consultation requirements may be included (see Chapter 19).

Post-making safeguards:

  • A “sunset” clause may be included (that is, the legislation only remains in force for a limited period of time).
  • The reasons for the exercise of the power may be required to be published with the secondary legislation.

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