1This circular sets out the requirements for the preparation of requests (‘bids’) from Ministers for bills to be awarded places on the 2018 Legislation Programme.
Invitation to submit proposals, deadline and format
3Ministers are asked to arrange for bids for the 2018 Legislation Programme to be delivered to the Legislation Coordinator in the Cabinet Office by 10.00am on Friday, 26 January 2018.
4The standard format for bids can be found on the CabGuide website and is set out in the annex to this circular.
5Each bid must be signed by the Minister, or in the case of multiple bids, attached under a covering letter signed by the Minister. Where a Minister is submitting more than one bid in a portfolio, the bids must be provided under a covering letter signed by the Minister that ranks all bids in that portfolio.
6Please provide two hard copies of each bid. In addition, an electronic version of each bid must be emailed to the Legislation Coordinator using the address at the bottom of this circular.
Process for developing the Legislation Programme
7Bids will be summarised and submitted in summary to the Cabinet Legislation Committee (LEG) for consideration and for the initial determination of priorities. The draft Legislation Programme as agreed by LEG is confirmed by Cabinet.
8From time to time, the Leader of the House may report to Cabinet on the progress of the Legislation Programme, and Cabinet may adjust priorities as necessary. Bills that fall behind the agreed timetable may be assigned a lower priority or be set aside when Cabinet reviews the Programme’s progress.
Items for which a bid is required
9A place on the annual Legislation Programme must be sought for the following:
9.1 every bill that is currently before the House or a select committee;
9.2bills that are currently undergoing policy development work, or are being drafted, and have a place on the previous (2017) Legislation Programme or in the 100 Day Plan;
9.3policy proposals that may result in a bill in 2018 (including bills likely to be proposed in Law Commission reports).
10New bills can be added to the Legislation Programme during 2018. However, it is preferable that bills be included in the Legislation Programme at the beginning of the year to assist with the planning of House time and the allocation of drafting resources.
11There is no need for departments to make bids for contingency bills.
Statutes Amendment Bills
12In recent years, Statutes Amendment Bills have been introduced almost annually to promote minor, technical, non-urgent, and uncontroversial amendments to a collection of Acts. It is likely that a new Statutes Amendment Bill will be included in the 2018 Legislation Programme.
13Departments preparing bids for minor amending bills should include at least a preliminary assessment of whether these bills might qualify for inclusion in a future Statutes Amendment Bill. Where it is important or essential to pass a minor amending bill by a particular date, state this clearly, so that a decision can be made as to whether the item is appropriate, on timing grounds, to proceed in a Statutes Amendment Bill.
14This paragraph applies to bills proposed for inclusion in the 2018 Legislation Programme that also require the drafting of associated regulations. The expectation is that these should be designed, developed and progressed as a single legislative package. The bid must describe the extent and nature of the regulations required and the proposed timeline for making the regulations.
Priorities and confidence and supply arrangements
15Ministers are asked to approach their proposals for bills in light of the government’s overall priorities and coalition and confidence and supply party arrangements. Departments should explain how the bid will assist the Government's agenda and priorities and/or the agreements between coalition and confidence and supply parties.
16Ministers should ensure that proposed timeframes for legislation allow them adequate time for ongoing consultation with coalition and confidence and supply parties from an early stage in the policy development process.
Planning and capacity
17In making recommendations to their Ministers, departments should ensure that:
17.1realistic project planning is in place to take into account the time that is required for policy development, discussion with the Legislation Design and Advisory Committee (the LDAC), drafting (including time for Parliamentary Counsel Office (the PCO) quality control standards of peer review and proof reading to be carried out), consultation with departments and the public (if an exposure draft is to be released), Bill of Rights Act 1990 vetting and Cabinet’s approval;
17.2in the case of bids for new bills, that an achievable timetable has been discussed with the PCO. If the PCO advises that the proposed timetable is not realistic then this advice must be clearly included in the bid.
18If a bill had a place on an earlier Legislation Programme but did not proceed (e.g. because policy development or drafting instructions were delayed), the bid must explain why and provide assurance that proposed new timelines can be met.
19When seeking a priority for a bill that is already introduced, but for which substantial changes are likely to be required to reflect new Government policy, departments should consult PCO about the time required for developing policy on, and drafting, those amendments (and adjust the priority accordingly).
20Ministers should ensure adequate consultation between coalition and confidence and supply parties has taken place, as part of ensuring support for all existing bills or any proposed changes to them.
21When seeking a priority for a new bill to be introduced and passed in 2018, departments should also be aware that, for most bills, instructions will need to be provided to the PCO as soon as possible in the first quarter of 2018 and that the bill needs to be ready for introduction by the end of the second quarter. When seeking a priority for a new bill to be introduced (but not passed) in 2018, instructions will need to be provided to PCO by the end of the second quarter of 2018.
22Any delays encountered at the policy development stage cannot be made up by shortening the time allowed to PCO to draft a bill. Instead, departments should revise their implementation plans and seek a new priority if appropriate.
23Departments should be aware that 6 months is the standard time to allow for select committee consideration of a bill, and that the Standing Orders provide that any bill sent to a select committee for a period less than 4 months requires a time-unlimited debate in the House.
24Paragraphs 17 to 19 and 21 and 22 also apply to the regulations that are associated with the bill. The default position is that the bid should propose a timeline that includes:
24.1any necessary Cabinet policy decisions to be taken before the Bill is read a first time;
24.2drafting instructions for the associated regulations to be sent to PCO before the Bill proceeds to committee of the whole (unless the regulations are not necessary for the commencement of the Bill or can be made more than 12 months after commencement);
24.3equivalent time being allowed for drafting of regulations as set out in paragraphs
21 and 22.
Discharging existing bills
25The compilation of the Legislation Programme is also a timely opportunity for Ministers to consider whether they wish to have an existing bill discharged from the Order Paper. To do so, a Minister should propose a priority category 8 in the relevant bid (meaning that the bill is ‘not to proceed’). Discharging a bill must be undertaken in consultation with the Office of the Leader of the House. Coalition and confidence and supply partners must also be consulted.
Role of the Parliamentary Counsel Office
26It is the statutory role of the PCO to draft the bills approved for introduction in the government’s Legislation Programme. The Inland Revenue Department is specifically authorised to draft certain revenue legislation. With that exception, departments should prepare material for possible inclusion in their Ministers’ bids on the basis that drafting will be undertaken by, or under the control of, the PCO.
27The PCO is available for general consultation to assist departments to prepare bids. In particular, the PCO can provide advice to departments to assist in identifying the size and complexity of a particular bill, the proposed timeframe for its introduction and passage, and whether a bill should be referred to the LDAC for advice. Departments should contact the PCO team leader responsible for their legislation: Melanie Bromley (phone 817 9644), Mark Gobbi (817 9272), Julie Melville (817 9270), or Katy Le Roy (817 9033).
28Ministers may ask the PCO to provide an assessment of the size of the drafting task associated with each proposed bill or substantive Supplementary Order Paper (SOP), to help to size the programme realistically in relation to drafting resources and House time. Unclear definition of the scope and content of a bill or SOP can contribute to the overestimation of the drafting task. This could reduce the chances of the bill gaining a place on the programme.
Role of the Legislation Design and Advisory Committee
29The LDAC is a committee established to provide advice to Ministers and departments in the initial stages of developing legislation. The LDAC advises on framework and design issues, and consistency with fundamental legal and constitutional principles, as set out in the Legislation Advisory Committee Guidelines on Process and Content of Legislation (2014 edition).
30Departments are required to indicate in a bid if a bill will be referred to the LDAC for advice and, if not, provide an explanation why. Information about what kinds of bills should be referred to the LDAC is available on its website (here). Departments can also discuss the LDAC’s involvement with the LDAC Secretary or with the PCO. Consultation with the LDAC will be determined by Ministers or by Cabinet.
31For bills that are referred to the LDAC, the expectation is that Ministers and departments will seek assistance when legislative proposals and drafting instructions are being prepared. Departments should allow sufficient time for consultation with the LDAC when setting legislative time frames. The LDAC usually meets every 6 weeks and the LDAC Secretary will send an invitation to a department at least 6 weeks before the relevant meeting. In cases where timing is an issue, the LDAC can delegate a subcommittee of its members to work with officials within the Department’s timeframes.
Preparing drafting instructions
32The best bills result from proper collaboration between the instructing department and the drafter. In particular, good drafting instructions are essential to ensure the timely and efficient drafting of legislation. The PCO can advise on the preparation of drafting instructions (contacts are set out in paragraph 24 above). Departments are encouraged to take advantage of this opportunity, and to use the publication A Guide to Working with the Parliamentary Counsel Office and the Kit for Instructors.
33Departments are also referred to the material contained in the Legislation Advisory Committee Guidelines on Process and Content of Legislation (2014 edition).
Secretary of the Cabinet
Gerrard Carter, Legislation Coordinator, Cabinet Office
Ph: 817 9309
Office of the Minister of [xx]
Cabinet Legislation Committee
Government Examples Bill: Request for Priority in the 2018 Legislation Programme
1Give the following details about the bid for legislation:
1.1the portfolio of sponsoring Minister;
1.2the department responsible (include a departmental contact name and phone number);
1.3the title of the proposed Bill (or the Bill in which these legislative changes are to be included);
1.4the proposed ranking of Bill within the bids from this portfolio;
1.5whether the Bill is estimated to be small/medium/large and whether of low/medium/high complexity; and
1.6the proposed priority.
2The summary information is required for bids prepared in response to the annual request for bids. For papers to LEG seeking a priority outside this process, the "summary information" section should be replaced with a "proposal" section that succinctly states what Ministers are being asked to decide.
3Briefly summarise the policy to be implemented by the Bill. (Give references and dates of relevant Cabinet and Cabinet committee decisions.)
4Indicate any aspects of the Bill that are likely to be contentious.
5Note any policy issues that have not yet been agreed and state the dates by which these are expected to be resolved by Cabinet.
Need for legislation
6Why is legislative action needed to implement the policy? (Please attach or refer to legal advice.)
7Indicate the suggested priority. Is it essential that legislation be enacted in the period under consideration, or simply desirable? If it is essential, explain why.
8If the proposal is for amending legislation, has the principal Act been amended in the last year or will it be amended in the near future? If so, explain why this amendment is needed now.
9Indicate whether the Bill complies with each of the following, with reasons if the Bill does not comply (list each sub-heading):
9.1the principles of the Treaty of Waitangi;
9.2the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993;
9.3the principles and guidelines set out in the Privacy Act 1993 (if the legislation raises privacy issues, indicate whether or not the Privacy Commissioner agrees that it complies with all relevant principles);
9.4the relevant international standards and obligations; and
9.5the LAC Guidelines on Process and Content of Legislation (2014 edition), which are maintained by the Legislation Design and Advisory Committee.
Binding on the Crown
10At the policy development stage a decision will be required by a Cabinet committee on whether the Bill should include a provision that the Act should be binding on the Crown. Provide advice, if possible, on what is likely to be recommended. (See the Cabinet Office circular CO (02) 4 Acts Binding the Crown: Procedures for Cabinet Decision).
11Summarise the consultation on policy issues that has already taken place or will be needed with each of the following groups, as well as the results of any consultation that has already taken place:
11.2relevant private sector organisations and public consultation processes.
12If consultation on policy issues has not yet been completed, indicate the date by which it is expected to be completed.
13Indicate whether the proposed Bill will be referred to the Legislation Design and Advisory Committee for design advice and, if not, explain why. If consultation is indicated, this should be factored into the legislative timeframe.
14Indicate whether an exposure draft of the Bill will be released for consultation before the Bill is introduced and, if so, provide details.
16Are regulations likely to be needed within 12 months of the Bill being enacted to give effect to the provisions in the Bill? If so, summarise briefly the regulations that will be needed, their likely timing (taking into account the 28-day rule), and the likely size of the drafting task involved to develop them.
17If it is critical that the Bill come into force by a particular date, give the date and explain why. If it is proposed that the Bill be expedited faster than standard timeframes (see below) explain why.
18Summarise the proposed timing for the legislation in chronological order, as follows. Provide Cabinet or Cabinet committee references where any deadlines have been established by Cabinet or Cabinet committee decision:
|Step||Proposed date||Consistency assurance|
|Date on which final policy approvals were, or will be, obtained from Cabinet.||
Describe process before or since this date (e.g. consultation, discussion documents).
If a Bill had a place on an earlier Legislation Programme but did not proceed, provide assurance that proposed timelines can be met this year.
|Date on which final drafting instructions were or will be sent to the Parliamentary Counsel Office or other drafter.||
Note the period between submission of instructions and approval for introduction provides for drafting and consultation on the draft Bill – relate your estimate for this phase to the expected length and complexity of the Bill.
This date should be in the first quarter of the year if it is critical that the Bill be passed during the year.
This date should be by the second quarter of the year if it is critical that the Bill be introduced during the year.
This date should be at least 3 months (depending on expected length and complexity of the Bill) before the date on which the Bill will be provided to Justice (see next date). If not, give reasons.
Note any concerns expressed by PCO.
|Date by which the Bill will be released for exposure draft (if an exposure draft is planned).||Allow adequate time for amending the Bill in response to comments from the exposure draft before the Bill is assessed for consistency with the New Zealand Bill of Rights Act 1990.|
|Date by which the Bill will be provided to the Ministry of Justice (or the Crown Law Office if applicable) for an assessment of consistency with the New Zealand Bill of Rights Act 1990.||This date must be at least two weeks prior to the paper being consider by LEG.|
|Dates on which the Bill will be before LEG and Cabinet for approval for introduction.|
|Date by which any policy decisions for associated regulations will be before Cabinet.||This date should be before the first reading of the Bill. Give reasons if not.|
|Date requested for introduction of the Bill.||This date should be May or earlier if it is critical that the Bill be passed during the year.|
|Date on which final policy approvals will be obtained from Cabinet for any substantive SOP to Bill (if already introduced)||Describe process before or since this date (e.g. consultation, discussion documents).|
|Date on which final drafting instructions were or will be sent to the Parliamentary Counsel Office or other drafter for any substantive SOP to Bill (if already introduced).||
This date should be at least 2 months (depending on expected length and complexity of the Bill) before the date on which the substantive SOP will be provided to Justice.
Note any concerns expressed by PCO.
|Date by which any substantive SOP will be provided to the Ministry of Justice (or the Crown Law Office if applicable) for an assessment of consistency with the New Zealand Bill of Rights Act 1990.||This date must be at least two weeks prior to the SOP being considered by LEG.|
|Date of report back from select committee.||Allow 6 months for the select committee process (or, at a minimum, 4 months). Give reasons if a period of less than 6 months is proposed.
If new policy is proposed to be added to a Bill at select committee, this date should be no less than 6 months from 1R and a select committee extension should be sought it if has an earlier report back date set at present.
|Date by which final drafting instructions for any associated regulations will be sent to the Parliamentary Counsel Office.||This date should be before the committee of the whole House stage of the Bill. Give reasons if not.|
|Date of enactment.|
|Date of commencement.|
19The Minister of x recommends that the Committee:
19.1note that the [title] Bill will [briefly summarise the policy to be implemented by the Bill];
19.2approve the inclusion of the [title] Bill in the 2018 Legislation Programme, with a priority [xx] (give priority number and brief description of priority);
19.3note that drafting instructions will be provided to the Parliamentary Counsel Office by [date];
19.4note that the Bill should be introduced no later than [date];
19.5note that the Bill should be passed no later than [date].
Authorised for lodgement
[Name of Minister]
[Title of Minister]