Once the policy content of a regulation has been agreed and the regulations have been drafted, authorisation must be sought through Cabinet Legislation Committee (LEG) for the item to be submitted to the Executive Council (EC).
Among other things, the paper should:
- include a statement about any inconsistencies with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (stating the nature of the potential inconsistencies identified/that there are none, and noting the steps taken to address the issue, or including information on any justifications for the regulations infringing a right or freedom
- indicate whether there may be grounds for the Regulations Review Committee to draw the disallowable instrument or regulations to the attention of the House under Standing Order 315 (which provides the Committee with the power to draw the attention of the House to regulations that trespass unduly on personal rights and liberties.
The empowering provisions of some Acts require that a certain procedural precondition (a statutory prerequisite) be met before regulations or an Order in Council can be made. Examples of statutory prerequisites include:
- a statutory requirement that an Order in Council be made only after the Minister has consulted specified persons or bodies
- a statutory requirement that an Order in Council be made only if the agreement of particular persons or bodies has been obtained.
Any statutory prerequisites will be identified in the regulation-making provisions of the empowering Act and usually in the enacting statement of an Order in Council drafted by the Parliamentary Counsel Office (PCO) (found on the front page of the Order in Council, preceding the contents section).
Any statutory prerequisites must be met before a paper is submitted seeking authorisation for the submission of regulations or Orders in Council to EC. If a statutory prerequisite is identified, it must be referred to in the compliance section of the paper, with a description of the statutory prerequisite, a brief explanation of how the requirement was met, and a sentence stating that the requirements have been met.
The information in the compliance section should also be reflected in the recommendations, as follows:
“note that [describe the statutory prerequisite, e.g. section x of the x Act requires that before recommending the making of an Order in Council under this section, the Minister for x must be satisfied that consultation with x has occurred]
note that [set out how the statutory prerequisite has been met, e.g. consultation with x has occurred]
note the advice of the Minister for x that this requirement has been met.”
Legislative instruments must not come into force until at least 28 days after they have been notified in the Gazette, reflecting the principle that the law should be available and capable of being understood before it comes into force (see paragraphs 7.96 to 7.99 of the Cabinet Manual).
Departments must take the 28-day rule into account at the beginning of the policy process. Legislative instruments are published or notified in the Gazette on the Thursday following the EC meeting on the Monday. The 28 days are, therefore, counted by calling Friday “day 1”, and so on. All days are counted, including weekends and public holidays.
There are some instances where legislative instruments do not require compliance on the part of the public, or where it is otherwise appropriate to seek a waiver of the 28-day rule.
Reasons that can be applied when seeking a waiver include:
- a legislative instrument will have little or no effect on the public, or will confer only benefits on the public
- the legislative instrument is made in response to an emergency
- early commencement is necessary to comply with statutory or international obligations
- early commencement is necessary to avoid unfair commercial advantage being taken, or the defeat of the purpose of the regulations
- irregularities need to be validated.
If a waiver of the 28-day rule is required, approval will need to be sought in the Cabinet paper to LEG, and an explanation given in the body of the paper. PCO notes non-compliance with the 28-day rule when certifying legislative instruments as being in order for submission to Cabinet.
Papers seeking authorisation for the submission of regulations to the Executive Council
Papers that are submitted to LEG seeking authorisation for the submission of regulations to the EC must follow the format set out on the page below: