Appendix 1: Requirements for instructions for preparation of legislation
Instructions for the preparation of legislation should -
Policy approvals
- State that appropriate policy approvals have been obtained and indicate what those approvals are:
- in the case of Bills, this ordinarily means that the Bill has been approved as part of the legislative programme, and that the policy content of the Bill has also been approved by a Cabinet committee and Cabinet. Cabinet will sometimes authorise the drafting of a Bill after the legislative programme has been settled
- in the case of subordinate legislation, this means either that the underlying policy has been approved by a Cabinet committee and Cabinet or, in the case of routine subordinate legislation that does not involve new policy decisions, that the Minister has authorised the sending of the drafting instructions
- Include copies of relevant Cabinet or Cabinet committee minutes
Policy Proposals
- Indicate the principal objectives intended to be achieved by the legislation
- List any other proposals that relate to the main proposal. These might be matters that have already been given effect to, or are in other proposed legislation, are concurrent with the main proposal, or are proposed for future legislative action. The related proposal might be one for another department's legislation
- Mention any politically sensitive aspects of the proposals
Background information
- Contain all relevant background material relating to the proposals to be included in the legislation, including all known legal implications
- If the legislation arises out of a report of a Commission or committee, either refer to the published report of that Commission or committee or, if it has not been published, supply a copy of it or of the relevant portions of it
- Mention any known legal or other difficulties with the proposal. Known legal problems with departmental initiatives must, if possible, be sorted out before the instructions are sent to the drafter. Examples of difficulties that must be drawn to the attention of the drafter include the following:
- in relation to proposed regulations, an ultra vires issue, or any aspect of their content that might attract the attention of the Regulations Review Committee
- a problem with compliance with the NZ Bill of Rights Act 1990
- any departures from acceptable practice, and the justification for this. In particular, this includes any departure from the LAC Guidelines
- any other matters that are likely to raise problems, such as regulations that purport to be retrospective, or penalties for offences that are unusually high
- Contain references to any relevant cases, whether or not they agree with the view favoured by the department
- Be accompanied by copies of any relevant legal opinions that have been obtained, whether or not they agree with the view favoured by the department
- In the case of amending legislation, deal separately with each proposed amendment
- If any matters are unresolved, indicate what they are and when the additional instructions in relation to them are likely to be given
- Indicate any matters that the instructor has investigated and that the instructor considers need not be dealt with. This may save the drafter from needlessly investigating the same issues and coming to the same conclusion
- Suggest the penalties to be imposed for any offence
Consequential amendments and savings
- Indicate existing legislation that will require amendment or consideration to give effect to the proposal
- Indicate any known consequential amendment
- Indicate any transitional or savings provisions required
Timing
- If the legislation is to come into force on a particular date, indicate that date and the reasons for choosing it
Consultation
- If the legislation impinges on the activities of other departments, or other departments have a legitimate interest in the legislation, -
- list those departments
- indicate the extent to which those departments have been consulted
- give the name and contact address of any persons in those departments with whom the instructor has already had dealings in relation to the matter.