Some specific types of empowering provisions
This is a single section from Chapter 15. Read the full chapter here.
Does the legislation authorise “incorporation by reference”?
Incorporation by reference should be used only if there are clear benefits to doing so or it is impractical to do otherwise.
Incorporation by reference refers to creating or defining rights, powers, or obligations by a reference in primary or secondary legislation to another document (usually prepared by someone outside government), or part of a document, the provisions of which are not set out in legislation.
The issue of incorporation by reference can be considered in relation to principles of good law making. There are four main issues with incorporation by reference:
- Quality—There is a risk that the material incorporated is not sufficiently certain or understandable to be appropriate for legislation. This is particularly important if the material is the basis for offences and is a common problem if the material incorporated was developed for another purpose (for example, guidance).
- Accessibility—Legislation should be easy to find, use, and understand. The incorporated material needs to be accessible to the same extent as the legislation that incorporates it.
- Legitimacy—If it is possible to change the incorporated material and for those changes to automatically flow through into the legislation, Parliament or the other law maker does not have control over the content of the secondary legislation. Subdelegation of this kind needs to be carefully considered and specifically authorised.
- Good process—An appropriate process should be followed in making the law and if incorporation by reference enables the usual process to be bypassed, this can be problematic.
Incorporation by reference is, to a certain extent, inconsistent with these fundamental principles of good law making (particularly if it allows for amendments to the document incorporated to be automatically part of the law). Accordingly, incorporation by reference should be used only if there is a strong need or benefit from doing so or it is impracticable to do otherwise.
The possible benefits from incorporation by reference are:
- It can enable the law to be shorter, simpler, and more consistent. It can remove significant technical detail that undermines the ease of finding and using the core requirements. It can simplify compliance by allowing users to rely on material they are already complying with in another context.
- It can allow rules to be developed by people who have specialist knowledge or expertise, which improves the quality of the law. Those who work in the affected area may then better understand the rules.
- It can facilitate convergence and consistency of standards being used and enable rules to remain up to date with international and national standards.
Practical examples of the cases where incorporation by reference may be appropriate, after considering the risks above, are:
- The document is long or complex, covers technical matters only, and few people are likely to be affected.
- The document has been agreed with one or more foreign governments, cannot easily be recast into an Act or secondary legislation, and deals only with technical or operational details of a policy already approved by Parliament.
- It is appropriate for the document to be formulated by a specialist government or inter-governmental agency or private sector organisation, rather than by Parliament or Ministers.
- The document has been developed by an organisation for use in respect of a product (such as motor vehicles) manufactured by it or its members.
Part 2 of the Legislation Act 2019 provides general authority for secondary legislation to incorporate by reference certain types of material and prescribes rules that apply when this general authority is relied on. The rules include a range of standard safeguards that address some of the above risks and issues. For example, amendments to the incorporated material do not become part of the law unless the amendments are specifically incorporated by later legislation made in accordance with Schedule 2 of the Legislation Act 2019 or another Act expressly authorises the amendments to have that effect. Further, consultation is required on the proposal to incorporate material, with the relevant agency to consider any comments made, having regard to the purpose of the Legislation Act 2019. The agency is to be satisfied that:
- the secondary legislation clearly identifies the material incorporated
- the means of making the material publicly available is sufficient to enable users to find and obtain copies of the material incorporated with reasonable ease
- it is otherwise appropriate to incorporate the proposed material as part of the secondary legislation.
Material incorporated by reference does not have to be published under the Legislation Act 2019 or presented to the House of Representatives.
Section 30 of the Standards and Accreditation Act 2015 provides general authority for New Zealand Standards (which include joint AS/NZS standards) to be incorporated by reference into secondary legislation, including bylaws. Section 29 deems a reference to a New Zealand standard in legislation to be a reference to the latest New Zealand Standard with that citation, together with any modifications to it, promulgated before the legislation in which it is cited was passed or made. This means that, consistent with the Legislation Act 2019, amendments to a standard do not take effect until specifically incorporated or authorised by a later instrument.
Legislation should not repeat the provisions of the Legislation Act 2019 or the Standards and Accreditation Act 2015 and those provisions should not be overridden in other legislation unless a different policy approach is necessary. Any different policy approach may need to be justified to the Regulations Review Committee.
In addition, each decision to incorporate material under the general authority in Part 2 of the Legislation Act 2019 or section 30 of the Standards and Accreditation Act 2015, needs to be justified on its own merits—ie that there are sufficient benefits in the particular case as described above to justify the costs in terms of the risks described above.
 For example, if the standard maker is an expert body and it is critical to the policy that there be consistency with those standards, it is more likely to be appropriate for an Act to permit amendments to apply automatically as part of the secondary legislation or with a simpler updating process.