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Cabinet Office circular

CO (21) 2: Legislation Guidelines: Cabinet Requirements and Expectations

Issue date: 
Thursday, 2 December 2021
Issue status: 
Current

Introduction

1The Legislation Guidelines (2021 edition) are the government's key point of reference for assessing whether draft legislation conforms to accepted legal and constitutional principles. 

2The Legislation Guidelines set out guidance on matters of legislative design and quality, and on matters fundamental to the rule of law in New Zealand. The guidelines are a key part of government efforts to promote quality legislation and transparency about the exercise of law-making power. They are designed to be used from early in the policy development process.

Requirements for Cabinet papers

Policy papers

3A Cabinet or Cabinet committee paper seeking approval for policy that will involve the use of legislation must:

3.1identify, and set out the reasons justifying, each departure from the default principles in the guidelines that is known when the paper is developed; and

3.2note, under "legislative implications", whether:

3.2.1any further guidelines issues are likely to arise during drafting; and

3.2.2whether officials have worked or will work with the Legislation Design and Advisory Committee (LDAC) on the proposal (see paragraph 10).

4The guidelines' default principles are set out in italics within each chapter. A checklist consolidating all the default principles is available on the LDAC's website.

5The CabGuide has more about Cabinet expectations for how the guidelines should be considered in the development of policy papers.

Legislation papers

6A Cabinet or Cabinet committee paper seeking permission to introduce a Bill or submit regulations to the Executive Council must:

6.1indicate whether the Bill or regulations comply with the guidelines;

6.2identify whether any aspects of the draft Bill or regulations depart from the default principles in the guidelines; and

6.3set out the reasons that justify each departure.

How departments should use the Legislation Guidelines

7When legislation is identified as an option for implementing policy decisions, officials should:

7.1consider the guidelines as a whole at the outset of policy development;

7.2continue to refer to the guidelines as the policy develops and new issues arise;

7.3use the factors to consider in deciding whether to consult with the LDAC and the guidelines checklist to track and set down the department's views on issues arising under the guidelines; and

7.4use the guidelines in preparing advice for Ministers and Parliament, so that they are informed about the principles of good law-making and the significance of any proposed departure from the guidelines.

8Compliance with paragraph 7 will also help officials to support Ministers in meeting the requirements in paragraphs 3 and 6.

9Chief executives should ensure that officials involved in the development of policy and legislation:

9.1understand the scope and function of the Legislation Guidelines; and

9.2meet the requirements and expectations set out in this circular.

How the Legislation Design and Advisory Committee can assist

10The Legislation Guidelines have been prepared by the LDAC.  The LDAC can advise departments on how the guidelines might apply to, or be implemented in, specific proposals. Normally, the LDAC engages with departments on Bills that have been identified for referral to the LDAC through the annual legislation programme.  However, the LDAC is also available to advise on other Bills, and can be flexible in its processes for urgent legislation if needed.  See the LDAC's website for more information, including the LDAC's contact details.

How the Legislation Guidelines relate to requirements for disclosure statements

11For most government Bills and substantive Supplementary Order Papers, departments are required to prepare disclosure statements that include information about significant or unusual legislative provisions for most government Bills and substantive Supplementary Order Papers.  Some information in disclosure statements will be similar to information contained in Cabinet or Cabinet committee papers about departures from the default principles in the Legislation Guidelines.  This information is important to provide transparency to the public about the exercise of law-making power and inform the work of select committees on Bills.  The requirements for disclosure statements are set out in Disclosure Requirements for Government Legislation[Cabinet Office circular CO (13) 3].

The Legislation Guidelines (2021 edition) replace the 2018 edition

12The Legislation Guidelines (2021 edition) replace the 2018 edition.  The main updates were made to Chapter 13 (Interpretation and application of legislation) and Chapter 14 (Delegating law-making powers) to reflect changes made by the Legislation Act 2019 and Secondary Legislation Act 2021.

Publication

13The Legislation Guidelines are available on the LDAC website.

 

Michael Webster
Secretary of the Cabinet

Enquiries:

Legislation Design and Advisory Committee:
Email: Contact.LDAC@pco.govt.nz

Last updated: 
Friday, 3 December 2021

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