A useful source for lawyers involved in the legislative process
Are you interested in how legislation is made, how government policy becomes a bill, and then eventually becomes law?
Most government legislation is drafted by the Parliamentary Counsel Office according to instructions from the relevant government department. The exception is tax legislation, which is drafted by Inland Revenue.
A number of other bodies are also involved in the development of legislation in New Zealand. The Legislation Design and Advisory Committee (LDAC) is one of these. It plays a role in the shaping of the design of bills, both before and introduction in Parliament. This article outlines LDAC’s role in the legislative process.
LDAC was established by the Attorney-General in June 2015 to improve the quality and effectiveness of legislation. It includes public service and non-public service members from a range of disciplines, including lawyers.
It carries out its role in three ways. First, it provides advice to departments early in the development of policy and legislation to resolve problems in the design of legislation and to identify potential public and constitutional law issues. Secondly, it sets standards through the publication of Legislation Guidelines (endorsed by Cabinet) and supplementary material to support the Guidelines. Thirdly, it scrutinises bills that come before Parliament.
Standard setting – the Legislation Guidelines
Over the years, LDAC has developed the Legislation Guidelines to provide advice and direction about the process of developing legislation and the need for new laws to maintain consistency with basic legal principles. They also provide specific guidance about particular elements of the content of legislation such as the creation of criminal offences, other remedies and the delegation of legislative power.
The Guidelines have been adopted by Cabinet as the government’s key point of reference for assessing whether draft legislation is well designed and accords with fundamental legal and constitutional principles. The Guidelines are published on LDAC’s website.
The Legislation Guidelines are a valuable resource for departmental legal teams and those working in government. Ongoing updates keep pace with changes in legal thinking and practice. Ministers are required to state in Cabinet papers seeking approval of bills for introduction whether any aspects of a bill depart from the default principles in the Guidelines and to justify any departure.
They are also a potentially invaluable tool for those submitting on draft legislation, outside of core policy issues. If you are a lawyer in private practice who is involved in making a submission on a bill, an awareness of the Legislation Guidelines, and the principles of good legislative design that it contains, will assist you in that work.
The current 2018 edition of the Legislation Guidelines consists of 29 chapters, covering matters ranging from general principles of good legislative design; constitutional and international issues; empowering the making of secondary legislation; and ways to achieve compliance and enforce legislation. Each chapter contains a general introduction to the issue and a series of questions, principles and some brief explanatory text. The principles in the Guidelines align with the three fundamental objectives of high-quality legislation: that legislation should be fit for purpose, constitutionally sound, and accessible for users.
In the table are some of the issues covered by principles in the Guidelines.
|Type of Issue||Example of a Guidelines principle||Example of what a department
should do to comply with
|International Issues||New legislation must not be inconsistent with existing international obligations.||Consult with MFAT, the Crown Law Office, and the department responsible for the existing treaty.|
|Affecting existing rights, duties, and situations and addressing past conduct||Legislation should not have retrospective effect.||Check that each transitional issue is adequately addressed either by the Interpretation Act 1999 or specific provisions in the new legislation.|
|Delegation of law-making power||Legislation should not authorise secondary legislation to be made in respect of matters that are appropriate for an Act.||Consider whether the subject matter is significant policy or, for example, is part of the mechanics of implementing the Act.|
|Applying an Act to the Crown||Any immunity from civil liability should be separately justified and should not be overly broad.||Consider whether an immunity is justified, and if so, consider other ways in which those exercising a power can be held to account.|
|Compliance and Enforcement||Regulatory options should be effective and efficient, workable in the circumstances they are required to operate in, and appropriate in light of the nature of the conduct and potential harm they intend to address.||Assess how appropriate the option is in relation to the regulatory system and the legislation’s purpose.|
From time to time LDAC also publishes supplementary material on its website. This aims to address issues raised in the Guidelines and may provide legislative examples. The supplementary material may also provide guidance on matters relevant to good legislative design that are not covered in detail in the Guidelines. Since the publication of the 2018 edition, LDAC has published supplementary material relating to “excluding or limiting the right to judicial review” and on “bespoke legislative solutions”.
Shortly, material will be published on purpose and principle clauses in legislation and on commencement provisions (material that is supplementary to the chapter on statutory interpretation). The material about purpose and principles clauses will provide more in-depth guidance on designing these, including different types of purpose clauses, the role of principles, and matters for caution around purpose and principle clauses. The material about commencement clauses will include general principles for designing commencement clauses and the different forms of commencement clauses.
LDAC’s role in advising government departments
LDAC provides advice to departments early in the development of policy and legislation (before a bill’s introduction). This allows incorporation of LDAC’s advice into the legislative design and a department’s instructions to the Parliamentary Counsel Office. LDAC assesses and advises on new bills against the Legislation Guidelines to resolve problems in the design of legislation and to identify potential public and constitutional law issues. However, nothing restricts the ability of LDAC to comment on any matter relating to a bill that it considers appropriate in the interests of encouraging high-quality legislation.
Bills are usually identified for LDAC consultation through the annual legislation programme. Officials indicate whether they intend to refer a bill to LDAC in legislation bids seeking priority for a bill on the legislation programme. Once a bill is referred to the committee, a subcommittee of three or four members will meet with the relevant department to discuss the bill. Before a non-public service member can be appointed to such a subcommittee, the Attorney-General must first give his or her consent. Often the subcommittee will meet several times with a department over the course of several months during the development of the legislative proposal.
LDAC reports publicly in its annual report on the issues on which it has advised. In the reporting year ending 31 July 2018, these include what discussions LDAC had with departments before introduction most frequently focused on; the importance of legislation being easy to use, understandable, and accessible; assisting departments to identify the policy objective; the appropriateness of subject matter for an Act or secondary legislation; consistency with fundamental constitutional principles, including the rule of law; and the relationship between the new legislation and existing law, particularly the need for legislation to explicitly address any conflicts.
LDAC’s role post-introduction
While a greater proportion of the bills considered by LDAC are pre-introduction bills, LDAC also reviews bills post-introduction. These are generally bills on which LDAC has not provided advice before introduction. LDAC considers whether any inconsistency with the Legislation Guidelines warrants a written submission on the bill to the relevant select committee. LDAC’s focus is not on policy, but rather on legislative design and the consistency of a bill with the principles contained in the Guidelines.
On occasion, an LDAC member will appear before a select committee to make an oral submission in support of the written submission. For example, this happened when the Christ Church Cathedral Reinstatement Bill was before the Environment Committee.
In the reporting year from 1 June 2017 to 31 July 2018, the most common issues on which written submissions were made to select committees related to: consistency with fundamental constitutional principles, including the rule of law; the impact of proposed legislation on rights under the New Zealand Bill of Rights Act 1990; the creation of criminal offences; and the relationship between the new legislation and existing law.
In the last 12 months LDAC has made submissions on the following bills: the Crown Minerals (Petroleum) Amendment Bill; the Canterbury Earthquakes Insurance Tribunal Bill; Taxation (Research and Development Tax Credits) Bill; the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill; the Misuse of Drugs Amendment Act (Synthetic Cannabis); the Education (School Donations) Amendment Bill and the Referendums Frameworks Bill. These were all bills not considered by LDAC before introduction. All of LDAC’s submissions are available on both the Parliament website and the LDAC website.
Among the design issues warranting an LDAC submission in the last 12 months were: whether a matter was appropriate for secondary legislation; whether the secondary legislation was subject to appropriate safeguards; whether creating a new statutory power was necessary, and if so, what safeguards are provided in the legislation; when should legislation include requirements to consult; and whether effective consultation with the public had occurred.
Membership of LDAC
LDAC has public service and non-public service members. Some of the public service members are ex officio (such as the Chief Parliamentary Counsel) and others are appointed by the Attorney-General. Non-public service members of LDAC are appointed by the Attorney-General.
LDAC’s membership has a mix of legal, policy, and economic backgrounds, key subject area expertise, and a diversity of views and perspectives. Appointed members have a strong interest in legislative design, and relevant expertise (either in specific subject areas or generally).
A full list of the current members of LDAC can be found on the LDAC website, as can further information on the role of LDAC.
The LDAC Secretariat can be contacted at contact.LDAC@pco.govt.nz