7.22 The development of legislation is a complex and time-consuming process requiring careful planning and coordination. The basic process for developing government legislation can be summarised as follows:
- decision to pursue a policy proposal requiring legislation;
- policy development, including impact analysis for regulatory proposals (see paragraphs 7.35, 5.75, and the CabGuide);
- consultation (see paragraphs 7.27 – 7.49);
- allocation of legislative priority (see paragraphs 7.10 – 7.13);
- approval of policy proposals by Cabinet;
- preparing drafting instructions and further consultation (see paragraphs 7.52 – 7.53);
- drafting (see paragraphs 7.50 – 7.51);
- approval by the Cabinet Legislation Committee and Cabinet of the draft bill for introduction (see paragraphs 7.54 – 7.56);
- reference to government caucus(es) (see paragraphs 7.57 – 7.60) and non-government parliamentary parties, as appropriate (see paragraphs 7.61 – 7.64);
- introduction, first reading, and referral to select committee;
- policy changes to a bill after introduction (see paragraphs 7.72 – 7.77);
- consideration and report by select committee; and
- remaining parliamentary stages.
Process for developing bills
7.23 In developing policy, Ministers and departments must ensure that the need for legislative action is not overlooked and, equally, that unnecessary new legislation is avoided. The Parliamentary Counsel Office can advise Ministers and departments in the early stages of policy development whether legislation is necessary. If it is, the Parliamentary Counsel Office can provide advice on the design of the legislation or form that it should take to give effect to the policy. Legislative and non-legislative options for achieving a policy objective are discussed in the Legislation Design and Advisory Committee's Guidelines on Process and Content of Legislation (known as the LAC Guidelines) and in guidance on impact analysis on the Treasury's website. The portfolio Minister may wish to consider at an early stage whether the proposal is suitable for inclusion in the Law Commission's annual work programme (see also paragraphs 7.19 - 7.21).
7.24Where legislation is needed to give effect to a particular policy, the portfolio Minister should make a bid for a place on the legislation programme as early as possible in the policy development process. Such bids are usually made as part of the preparation of the annual legislation programme at the beginning of the year (see paragraphs 7.6 – 7.12).
7.25 Once the proposed bill is approved as part of the legislation programme, the relevant department should develop fully the policy that will form the basis of the bill, for consideration by the portfolio Minister and submission to the appropriate Cabinet committee and Cabinet.
7.26 Unless an exemption applies, all policy proposals submitted to Cabinet that include regulatory options or proposals (that is, options that would ultimately create, amend, or repeal Acts or disallowable instruments for the purposes of the Legislation Act 2012) must be accompanied by an impact statement or summary. An impact statement is a comprehensive outline of the results of impact analysis undertaken by the lead policy agency, and is intended to ensure that Cabinet has the best available information on the nature and extent of a policy problem, policy options, and risks and impacts. An impact statement or summary is published at the time that a government bill is introduced or disallowable instrument is notified in the New Zealand Gazette. Detailed information about impact analysis, including exemptions and the requirements for preparation and presentation of impact statements and summaries, is set out in the CabGuide and on the Treasury's website.
7.27 Effective and appropriate consultation is a key factor in good decision-making, good policy, and good legislation. When legislation is being developed, the types of consultation outlined in paragraphs 7.28 – 7.46 should be considered.
7.28 Ministers may need to consult their colleagues during policy development and before submitting draft legislation to the Cabinet Legislation Committee or Cabinet. Where the subject matter of a bill affects the portfolio interests of another Minister, the Minister responsible for the bill should consult the other Minister.
7.29 Ministers may consider a policy issue to be suitable for consultation with caucus committees or caucuses during the policy development process. Caucuses are also consulted on draft bills before introduction (see paragraphs 7.57 - 7.60).
7.30 At all stages in the development and passage of a bill, Ministers should consider the need to confirm support for the bill from parties representing a majority of the members in the House (see paragraphs 7.61 – 7.64). This consultation may cover both the substance of the bill and the proposed process for its parliamentary consideration.
7.31 Coalitions and minority governments are likely to establish detailed procedures for political consultation, which will generally be promulgated by a Cabinet Office circular.
7.32 Ministers are responsible for consultation on proposed legislation with non-government parliamentary parties and any independent member of Parliament. Departments may be called on to support Ministers in this role (see paragraph 3.77, and the election period guidance issued by the State Services Commission, available on its website.
7.33 Proposed legislation will often affect the interests of other departments or agencies in the state services as well as the interests of the department responsible for the legislation. Lack of consultation within the state sector produces legislation that is likely to require early amendment or to have a protracted or difficult passage through the government policy process and the House. Other departments that have an interest in, or may be affected by, proposed legislation should therefore be consulted fully as policy is developed and before drafting instructions are prepared. Relevant agencies in the wider state sector should also be consulted as appropriate.
7.34 The Ministry of Justice must be consulted on all bills, so that it can vet them for consistency with the New Zealand Bill of Rights Act 1990 (see paragraph 7.67). Bills developed by the Ministry of Justice are vetted by the Crown Law Office. The Ministry of Justice must also be consulted on all proposals to create new criminal offences or penalties or alter existing ones, to ensure that such provisions are consistent and appropriate. Departments should assess the implications of bills on existing Treaty of Waitangi settlements and consult the Ministry of Justice if they conclude there will be a potential impact. This is to safeguard the durability of Treaty settlements, and the renewed relationship that settlements have established.
7.35 If impact analysis requirements will, or may, apply to a policy proposal, a department must contact the Regulatory Quality Team at the Treasury to confirm this, and to determine what type of impact statement or summary will be required and who will need to review it before it is submitted to Cabinet. The CabGuide and the Treasury's website include further information about the provision of independent quality assurance for impact statements and summaries.
7.36 The Cabinet Office should be consulted if the proposed legislation would:
- establish a new portfolio or changes existing portfolios;
- contain a definition of “Minister” or “department”; or
- require the responsibility for the administration of the legislation to be assigned to a portfolio and/or a department by the Prime Minister.
Directories containing information about ministerial portfolios are listed and described in paragraph 2.34.
7.37 The Legislation Design and Advisory Committee is a government committee that provides advice to departments on bills early in their policy and legislative development. The committee's mandate is to help resolve problems in the architecture of legislation, and to identify potential rule of law issues, with the goal of ensuring that policy objectives are achieved and improving the quality of legislation.
7.38 The committee is responsible for the LAC Guidelines, which cover issues that are fundamental to the development of legislation, such as proper processes and basic legal principles. The guidelines have been endorsed by Cabinet as the government's key point of reference for assessing whether draft legislation conforms to accepted constitutional and legal principles.
7.39 Ministers and departments are encouraged to seek formal or informal advice and assistance from the committee at an early stage on projects that are significant, involve complicated legislative design issues, appear to have public law implications, or have implications for the overall coherence of the statute book. Departments should allow sufficient time for this consultation when setting legislative timeframes.
7.40 Requests for a place on the legislation programme must note whether bills will be referred to the committee. If departments are unclear whether they should consult the committee, they should discuss this with the Parliamentary Counsel Office. Cabinet may decide consultation is appropriate when it approves the legislation programme, or when it approves the addition of bills to the programme in the course of the year.
7.41 Through small ad hoc subcommittees of external members appointed by the Attorney-General, the committee will also scrutinise some bills and may make submissions to select committees on them. The committee would be acting independently for this purpose.
7.42 Officers of Parliament should be consulted in their areas of interest as appropriate: for example, the Office of the Ombudsmen over the application of the Ombudsmen Act 1975 to a new agency. If proposed legislation would establish a new officer of Parliament, the Office of the Clerk should be consulted, following which the Minister responsible for the bill should consult the Officers of Parliament Committee (a select committee chaired by the Speaker) at an early stage before the legislation is developed.
7.43 The Office of the Clerk should be consulted where legislative proposals have an impact on Parliament or the House or if they directly affect the Office of the Clerk.
7.44 Ministers may wish to consult other organisations such as Māori groups, professional or trade associations, non-government organisations, local government, or community groups, or to engage in a wider process of public consultation with citizens or affected parties, before policy decisions are finalised and the bill is drafted and introduced into the House.
7.45 In some sectors, departments may have specific policies and guidelines covering consultation with the public: for example, the generic tax policy process (Inland Revenue Department and the Treasury).
7.46 Once drafting has progressed, in some circumstances releasing an exposure draft of the legislation may be helpful. In considering consultation with organisations outside the public sector, Ministers should take into account the confidentiality constraints mentioned in paragraph 7.48.
7.47 Consultation is essential but can be time-consuming. At the beginning of the planning process for the development of legislation, consideration must be given to the type of consultation that will be necessary or appropriate. Realistic timeframes for that consultation must be built into the legislation timetable. Several rounds of consultation may be needed on complex or significant legislation.
7.48 At every stage of its development, draft legislation is confidential and must not be disclosed to individuals or organisations outside government, except in accordance with the Official Information Act 1982, any Cabinet-approved consultation procedures, or with CO (14) 4 Attorney-General's Protocol for Release of Draft Government Legislation outside the Crown. Any such release or disclosure must first have the approval of the Minister concerned and, in most cases, the approval of the Attorney-General. Unauthorised or premature disclosure of the contents of a draft bill could embarrass the Minister, and imply that the role of Parliament is being usurped. Cabinet, government caucuses, and Parliament must always retain the freedom to amend, delay, or reject a bill.
7.49 Detailed information on consultation requirements and processes is set out in the CabGuide. Cabinet Office circulars are available on the website of the Department of the Prime Minister and Cabinet.
7.50 The key role of the drafter is to produce plain English drafts that are legally correct and give effect to government policy. The drafter takes a whole-of-statute-book perspective and ensures that the legislation is well structured and consistent with other statutes and legislative drafting principles. In drafting legislation, drafters act on instructions from instructing departments (see paragraphs 7.52 – 7.53 and the Guide to Working with the Parliamentary Counsel Office).
7.51 The Parliamentary Counsel Office is responsible for preparing all government legislation other than legislation administered by the Inland Revenue Department. Approval must be sought from the Cabinet Legislation Committee, and confirmed by Cabinet, before instructions for drafting legislation are given to anybody other than the Parliamentary Counsel Office or the Inland Revenue Department (for legislation administered by that department). Submissions seeking such approvals must state the expected cost of using a drafter outside the Parliamentary Counsel Office or the Inland Revenue Department, and the proposed source of funding. Where approval is obtained, the actual cost is subsequently to be advised to the Cabinet Legislation Committee. The Parliamentary Counsel Office must approve legislation that has been drafted by a drafter outside the Parliamentary Counsel Office or the Inland Revenue Department, before approval is sought for its introduction into the House.
7.52 Drafting instructions provide the basis on which bills are drafted. Unless the Attorney-General has approved that drafting commence before policy approvals have been obtained, Ministers and departments should not provide drafting instructions to the Parliamentary Counsel Office or other drafter until the bill has been given a place on the legislation programme, all appropriate consultation has taken place, and Cabinet has approved the developed policy. The Ministers and departments initiating legislation are responsible for ensuring that drafting instructions, and bills as drafted, reflect government policy fully and correctly.
7.53 Good instructions are essential to ensure the timely and efficient drafting of legislation. The matters that need to be included in proper drafting instructions are set out in the LAC Guidelines and in the Guide to Working with the Parliamentary Counsel Office. Drafting instructions for a bill must cite the approval of a Cabinet committee or Cabinet before parliamentary counsel or other drafters may begin drafting. The Parliamentary Counsel Office can advise departments on how to prepare instructions.
7.54 The Cabinet Legislation Committee examines all draft bills before they are approved for introduction, to ensure that their policy content has been approved by the appropriate Cabinet committee and that all the relevant requirements (as set out in the Cabinet Manual, the CabGuide, and any applicable circulars) have been satisfied. The Cabinet Legislation Committee also examines substantive Supplementary Order Papers. It is not the function of the Cabinet Legislation Committee to revisit policy decisions underlying a bill, or to round them out; rather, its function is to be assured that all necessary decisions have been taken properly and that the bill conforms with legal principle. The Cabinet Legislation Committee will then refer bills to Cabinet for final approval for introduction into the House, either as separate items on the Cabinet agenda or in the committee's weekly report to Cabinet. A bill may not be introduced into the House until it has been approved by the Cabinet Legislation Committee and confirmed by Cabinet, or approved by Cabinet itself.
7.55 If at any stage of the drafting process significant changes are proposed to the policy already approved by Cabinet, the matter should be brought back to the relevant Cabinet committee for consideration and additional approval. Additional consultation as set out in paragraphs 7.27 – 7.46 may also be necessary. If changes are proposed after a bill is approved for introduction by Cabinet, the matter should similarly be brought back to Cabinet for consideration and additional approval before introduction. See paragraphs 7.72 – 7.77 for information on policy changes to a bill after introduction.
7.56 There are particular requirements for Cabinet submissions seeking approval for bills to be introduced into the House. These requirements are set out in the information on bills in the CabGuide.
7.57 A party caucus comprises all the members of Parliament belonging to a particular political party. The number of government caucuses will depend on the number of parties represented in government. Each party caucus is likely to meet separately, although joint caucus meetings may be held.
7.58 Ministers are responsible for ensuring that each draft bill is referred to the government caucus(es) before being introduced into the House to ensure (among other reasons) that the bill has adequate support to progress. Reference to caucus(es) will usually follow approval by Cabinet, but in some cases timing considerations may require consultation with caucus or a caucus committee to precede Cabinet approval. The portfolio Minister and, in a coalition or minority government, any Minister who is representing a coalition partner’s or support party’s interests on the bill are expected to ensure that the matter is placed on their respective caucus agendas. Each Minister should be present to explain the bill.
7.59If caucus consideration results in changes to the bill, the draft will need to be reconsidered by the relevant Cabinet committee or the Cabinet Legislation Committee, Cabinet, and caucus(es) before being introduced.
7.60 A Minister may, from time to time, ask officials to attend a caucus committee or caucus meeting to assist with briefing on proposed or draft bills. Guidance on the role of officials in this situation is in paragraph 3.76.
7.61 Consultation may be undertaken with non-government parliamentary parties and any independent members of Parliament before bills are introduced, to:
- confirm the support of a majority of the House for a bill to progress; or
- facilitate aspects of the parliamentary process.
7.62 As with caucus consultation, changes proposed to a draft bill as a result of this consultation may mean that the draft needs to be reconsidered by the relevant Cabinet committee or the Cabinet Legislation Committee, Cabinet, and caucus(es) before being introduced.
7.63 The portfolio Minister should assess the consultation requirements for each bill on a case-by-case basis, and undertake that consultation according to agreed procedures. Close liaison with the Leader of the House may be needed.
7.64 Ministers should consult the Leader of the House on engagement with non-government parliamentary parties through the Business Committee. The Business Committee (a select committee chaired by the Speaker) is empowered to approve extended sittings, arrange how committees of the whole House consider bills, classify bills as cognate, determine that select committee reports are to be debated, and arrange House business.
7.65 Ministers must confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme. In particular, Ministers must draw attention to any aspects of a bill that have implications for, or may be affected by:
7.66 When a bill is subsequently submitted to the Cabinet Legislation Committee for approval for introduction, the Minister is required to confirm in the covering submission that the draft bill complies with the legal principles and obligations listed in paragraph 7.65. Ministers must also provide information on a range of other matters to ensure compliance with various public law standards (see the procedures for legislation in the CabGuide for details).
7.67 The Attorney-General is required to draw to the attention of the House any bill that appears to be inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act. Such issues should be identified by the agency developing the bill at the earliest possible stage. The Ministry of Justice is responsible for examining all legislation for compliance with the New Zealand Bill of Rights Act and advising the Attorney-General. The Crown Law Office examines bills developed by the Ministry of Justice. The Attorney-General's report on a bill is referred to a select committee. Ministers are expected to assist the committee in considering New Zealand Bill of Rights Act issues.
7.68 The Standing Orders allow only certain types of omnibus bills (see the section entitled “Omnibus bills” in the chapter on legislative procedures in the Standing Orders). When developing omnibus bills, departments should consult the Office of the Clerk at an early stage. The types relevant to most Ministers and departments are:
- omnibus bills that deal with interrelated topics that can be regarded as implementing a single broad policy (advice on compliance with this requirement should be sought from the Office of the Clerk);
- finance bills or confirmation bills that validate an action or confirm a legislative instrument;
- taxation bills; and
- Statutes Amendment Bills.
7.69 Statutes Amendment Bills are designed as vehicles for technical, short, and non-controversial amendments to multiple Acts. Cabinet generally agrees to a Statutes Amendment Bill being included in the annual legislation programme. The Cabinet Office advises all Ministers and chief executives by Cabinet Office circular of the criteria, process, and deadlines for the development of the bill, which is then coordinated by the Ministry of Justice.
7.70 The need to obtain the agreement of all other parties and any independent members of Parliament on a Statutes Amendment Bill is particularly important. The Standing Orders provide for any clause in such a bill to be struck out if any member objects to it in the committee of the whole House.
7.71 Ministers seeking to promote minor amendments that have critical features (for example, in relation to timing or the need for immediate certainty) should consider seeking a priority for the amendments to proceed in their own right, even though they meet the criteria for inclusion in a Statutes Amendment Bill.
7.72 During the parliamentary process, it often becomes necessary to amend a bill. Changes can be made to a bill either as a result of the select committee process (that is, as recommended in the committee’s report), or later during the committee of the whole House stage. Ministers are responsible for monitoring the progress of their legislation when it is before a select committee (see paragraphs 7.14 and 7.110 – 7.113).
7.73 Changes proposed by the Minister in charge of a bill are usually formally publicised by being set out on a Supplementary Order Paper (SOP). Changes proposed by the government at the select committee stage will normally be proposed in the report of departmental officials assisting the committee. It may, however, be practical and transparent for the Minister to invite a select committee to consider (and consult publicly on) changes set out on an SOP, especially where the proposed changes are extensive or significant.
7.74 Where amendments proposed to a bill before a select committee or the committee of the whole House are outside the scope of the bill as introduced, authorisation from the House (an “instruction”) will be needed to enable the committee to consider the proposed amendments. Similarly, where proposed amendments are affected by the rules on omnibus bills in the Standing Orders, a suspension of Standing Orders will be needed. Procedural advice on these matters and on the parliamentary process should be obtained from the Office of the Clerk.
7.75 The procedures and consultation requirements set out in this chapter also apply to significant changes to a bill that is before the House or a select committee, whether or not the proposed changes are to be set out on an SOP or are outside the scope of the bill as introduced. The policy content of an SOP may be such that further approvals from Cabinet are needed for new policy or to alter existing policy approvals before the SOP is drafted and submitted to the Cabinet Legislation Committee (see paragraphs 7.54 – 7.56). This may include a new or supplementary impact statement or summary and, once the SOP is released, a revised or additional departmental disclosure statement.
7.76 Where a Minister’s officials advising a select committee are to propose substantive amendments to a bill before the committee, Cabinet should be advised and prior policy approvals should be sought from Cabinet if time permits.
7.77 All SOPs that are outside the scope of a bill or that make substantive changes to a bill (particularly SOPs that are to be referred to a select committee for consideration) must first be submitted to the Cabinet Legislation Committee for approval. An SOP that serves a mechanical purpose (such as to divide a bill after its committee stage) or promotes minor technical improvements need not go through these procedures.
7.78 Ministers should keep themselves informed about matters that may affect their portfolios, such as:
- the introduction of, and progress on, bills not promoted by the government (local bills, private bills, and members’ bills); and
- legislative amendments proposed other than by government members of Parliament.
Cabinet consideration of the government position on whether to support such a bill or proposal may be required. In rare cases, the government may adopt a member's bill following Cabinet consideration, with the agreement of the member in charge of the bill.
7.80Under the Standing Orders, local bills, private bills, and members' bills that affect the rights and prerogatives of the Crown (for example, by seeking to bind the Crown) require the Crown's consent before they can be passed. This consent is conveyed to the House in a message from the Governor-General, who acts on the advice of the Prime Minister. The Office of the Clerk and the Parliamentary Counsel Office identify whether the rights and prerogatives of the Crown are affected by a bill. The Office of the Clerk seeks advice from the Leader of the House on whether the government wishes the bill to proceed. Cabinet consideration of the government position may be required if it has not already taken place at an earlier stage.
7.81 Under the Standing Orders, a Minister cannot promote a member's bill. On becoming a Minister, a member is obliged to transfer responsibility for a member's bill to a non-ministerial colleague.