New Zealand Law Society - Legislation waits to be brought into force

Legislation waits to be brought into force

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Legislative provisions in 23 Acts - one of which is 25 years old - are waiting to be brought into force by Order in Council.

Information provided by the responsible government agencies indicates that some of the legislation will never become law.

The Parliamentary Counsel Office's latest Table of Legislation waiting to be brought into force by Order in Council shows that at 1 October 2017 there were two whole Acts which have yet to be brought into force.

It is now almost five years since the Antarctica (Environmental Protection: Liability Annex) Amendment Act 2012 received the Royal Assent on 11 December 2012.

The Act implements New Zealand's obligations under an international protocol for liability arising from environmental emergencies. It will be able to be brought into force when all 28 Consultative Parties to the Antarctic Treaty approve the Annex. So far just 14 have done so (New Zealand approved it in May 2013).

Receiving the Royal Assent on 9 March 1999, the Nuclear-Test-Ban Act 1999 could possibly be New Zealand's answer to the recent actions of North Korea. Perhaps we should hurriedly bring it into force...

The Act seeks to implement New Zealand's obligations under the Comprehensive Test Ban Treaty, the Ministry of Foreign Affairs and Trade says.

"At present the CTBT is not in force," the ministry points out. "It will enter into force once all 44 Annex 2 countries under the CTBT have ratified the treaty."

So far 36 of the 44 have ratified. However, with China, India, Pakistan, North Korea, Iran, the United States, Egypt and Israel still to ratify, it could be a very long time before New Zealand's Governor-General is able to sign the Order in Council bringing this piece of legislation into force.

"At present it is difficult to predict when the CTBT will enter into force," MFAT helpfully points out.

Sections 35(1) to 35(3) of the Civil Aviation Amendment Act 1992 have sat on the books since 10 August 1992. The Ministry of Transport says the provisions relate to the removal of the exclusive right of the Airways Corporation to provide "certain services".

"The review of the Civil Aviation Act 1990 has resulted in a decision to repeal these provisions. This will be implemented through the Civil Aviation Reform Bill likely to be introduced in 2018," it says.

A number of other pieces of legislation in the Table are also likely to be repealed before they ever come into force. Section 108 of the Resource Management Amendment Act 2005 is definitely for the chop, while sections 4 to 6 and 14 of the Domestic Violence Amendment Act 2008, section 24 of the Conservation Amendment Act 1996, section 6 of the Wildlife Amendment Act 1996 and sections 24(3) to (5) and 25(2) of the Housing Corporation Amendment Act 2001 are also being considered for repeal.

Many of the other pieces of "waiting" legislation are obviously providing work for the civil service as their fate is reviewed from time to time.

"MPI is currently investigating multiple options on how best to progress with this legislation," the ministry says in respect of section 33 of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004. MPI says the joint land-based aquaculture review by DOC and MPI which is behind the legislation was deferred due to the 2014 [not the 2017] General Election: "The review was placed on hiatus because of other priority work".

Legal aid keeps the Ministry of Justice busy and the legal aid landscape received major changes through the Legal Services Act 2011. Six years later, sections 9, 21(7) and 114(1)(s), (t) and (u) remain inoperative - and will probably remain so.

"These provisions relate to a streamlined eligibility assessment process for low-level criminal cases, approved by Cabinet in 2009," the ministry says. While the legislation proceeded, the necessary regulations to specify which cases the process would apply to and how it would operate did not.

"The ministry has assessed the provisions, and considers they are no longer necessary," it now says. "In the time since the relevant provisions in the Act were enacted, these purposes have either been achieved through other means, or will be better achieved through currently planned changes."

Sections 87 and 88 of the Human Tissue Act 2008 will, however, continue to be kept in limbo. The sections provide for organ donor information currently held on the national register of driver licences to be disclosed to the national organ donor register "should such a donor register be established by regulations under section 78 of the Act", the Ministry of Health says.

The ministry is keen to retain the two inoperative sections, pointing out that a recently published organ donation strategy mandates work towards a donor register separate from the driver license register. "If that comes about, the amendments provided for in those sections would be required," it says.

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