FOREWORD
Legislation is a vital function of government. The Government uses it to introduce its policies for the protection and promotion of the rights and interests of New Zealanders under the law, to raise taxes, to authorise spending, to regulate relations between individuals and between individuals and the state, and for many other important purposes.
Translating policy proposals into sound and principled legislation is not an easy task. If any of the many steps which make up the overall process of developing agreed policy into legislation are poorly executed, the rights and liberties of individuals and groups may be put at risk and the government's policy may not be given effect to. Unnecessary controversy and litigation and perverse effects on the operation of public and private interests are likely to be the result. There are as well direct costs for the management of the government's business in developing legislation. The costs occur in the development of policy, the Cabinet approval process, the law drafting and approval stage, and the parliamentary approval process. There are costs too for the community in the examination of Bills by individuals and interested groups, and in their making submissions to select committees of the House of Representatives. Lack of care and poor procedure at any of these stages can greatly increase the overall cost of the process, and in the interests of efficiency and effectiveness such unnecessary costs must be avoided.
It is the case that errors are corrected at the select committee stage. But to rely on the select committees of the House to correct ill-conceived legislation is not acceptable. Ibis committee process provides the public with an opportunity to comment on the legislative embodiment of the government's policy and to bring matters which may need further consideration to the attention of Parliament; but it is not a quality inspection process designed to correct poor policy analysis or drafting.
Experience teaches that both the process for the making of legislation and the content of legislation can be improved. Ibis Report, prepared in 1987 and revised in 1991 by the Legislation Advisory Committee, is designed to set out central aspects of that process and elements of the content of legislation that should always be addressed.
The message is clear. We must
- ask whether legislation is even needed to give effect to the policy which the Government is planning to implement,
- follow proper procedures in preparing the legislation, in particular by consulting appropriately outside government and within it,
- ensure that the legislation does give effect to the proposed policy, and
- ensure as well that it complies with established principles, unless there is good reason for departing from them.
This Government, like its predecessor, has directed that Ministers and their officials in proposing and preparing legislation are to address the principles of process and content set out in this report. They are required to advise the Cabinet Legislation Committee of the steps they have taken to comply with the principles. These matters are also emphasised in the Cabinet Office Manual (1991) ch 5 (Legislation. and Related Matters).
The Legislation Advisory Committee is playing a valuable role in testing the need for legislative proposals and checking them against principle. Parliamentary Select Committees which have an increasingly important part in reviewing Bills have been strengthened. The Regulations Review Committee has been established to supervise on behalf of Parliament the exercise of the legislative power Parliament has delegated. In that it is assisted by the powers conferred by the Regulations (Disallowance) Act 1989.
Other steps are being taken to improve the quality of legislation. The Law Commission Act 1985 states a commitment to making our law as simple, understandable and accessible as practicable. Parliament has enacted the Imperial Laws Application Act 1988 which provides a definitive list of the Imperial legislation in force in New Zealand. The Acts and Regulations Publication Act 1989 emphasises the duty of the State to make the law available. The Law Commission has proposed a new Interpretation Act; it has made other proposals for the improvement of legislation, and it is preparing proposals on the format of legislation and a Manual on Legislation.
The message in this report is for the whole of government - for Ministers, for senior officials, for departmental lawyers, and for all others concerned with the preparation of legislation. It applies not only to primary legislation but also to secondary legislation such as statutory regulations. The introduction, part I and part IIA are of general significance, while the remainder is of more specific interest to the lawyers involved in the preparation of legislation.
The guidelines are also of interest and value to the many other New Zealanders who participate in the legislative process. They are able to use the guidelines in commenting on proposed legislation.
Douglas Graham. December 1991
9 December 1991
Hon Douglas Graham MP
Minister of Justice
Parliament House
WELLINGTON
Dear Minister
The report on Legislative Guidelines which was issued by the Legislation Advisory Committee in 1987 has been revised to take account of developments in the law and in the legislative process since that time.
A large number of departmental officials and others have contributed to the preparation of this revision - as to the original report. It also benefits considerably from the interchanges we have had with Ministers, Members of Parliament and officials when we have prepared and made submissions on Bills and legislative proposals.
I would also like to mention here the great contribution which Sir George Laking KCMG made to the work of the Committee as its foundation chairman. That contribution caps a remarkable service, which so far has lasted over 60 years, to New Zealanders and their governments.
The revised report is enclosed. Yours sincerely Mervyn Probine Chairman Members of the Committee Professor F M Brookfield Mr J G Fogarty QC Mr A R Galbraith QC Mr W Iles QC CMG Sir Kenneth Keith Dr Mervyn Probine CB Hon Mr Justice Robertson Judge D F G Sheppard Mr C J Thompson Adrienne von Tunzelmann Rodney Harris (Secretary)