The New Zealand Law Society | Te Kāhui Ture o Aotearoa says the new framework governing secondary legislation is an important part of New Zealand’s constitution, and changes to the framework would better support the accessibility and Parliamentary oversight of secondary legislation.
The Law Society presented its submission on the Secondary Legislation Bill to Parliament’s Regulations Review select committee today and recommended changes to ensure better coverage, and more safeguards on the process for exempting secondary legislation from the usual requirements of publication, presentation and disallowance.
“The bill has an important role in supporting the rule of law – by ensuring that people can easily know what the law is – and upholding the constitutional principle that Parliament is the supreme legislative power in New Zealand. The Law Society considers the bill could be improved in two areas to better achieve those objectives,” Law Society, spokesperson Debra Angus says.
The bill substantially changes the current definition of ‘secondary legislation’, so that in the future, legislative instruments made under the Royal prerogative which are not already listed, will not have to be published and will not fall under Parliament’s oversight. Unlike other secondary legislation, these instruments are made under the Sovereign’s common law powers, not under a power delegated by Parliament.
“This has significant implications. The Law Society has consistently highlighted the need to ensure that all instruments with legislative effect should be published and subject to Parliament’s oversight,” Ms Angus says.
The Law Society, also recommends greater scrutiny of the proposed regime allowing exemptions from the requirement for secondary legislation to be published, presented to the House and subject to Parliament’s disallowance procedures.
“Any such exemptions should be rare. It is not clear that all the proposed exemptions in the bill are justified. The committee will need to be satisfied that each exemption is legitimate and no broader than necessary,” Ms Angus says.
The Law Society also recommends incorporating a reporting system in the bill to ensure that exemptions are properly applied, to provide an appropriate level of transparency.