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Delegating law-making powers
Parliament makes laws by enacting primary legislation (Acts of Parliament). However, it is often not appropriate or possible for an Act to include all the details necessary for it to have its intended effect. For this reason, Parliament will often include in an Act a provision that delegates to another person or body, often part of the Executive, the power to prescribe these necessary details.
The Act that delegates this law-making power is known as the “empowering Act”. The specific provision containing the power is the “empowering provision”. The product of the exercise of this power is known, generically, as “delegated legislation” or “secondary legislation”. This chapter refers to it all as “secondary legislation” as this is the label adopted by the Legislation Bill. Although many other names are used (for example, regulations, proclamations, Orders in Council, bylaws, rules, codes), these names do not, by and large, provide a principled way of distinguishing between different types of secondary legislation. The key questions with secondary legislation are what can be delegated, who exercises the delegated power, and what safeguards apply.
The following competing considerations need to be balanced in determining what is appropriate for Parliament to delegate under an Act:
- The legitimacy of the law—Important policy content should be a matter for Parliament to determine in the Act through an open democratic process. Too much delegation, or having delegated powers that are too broad or uncontrolled, undermines the transparency and legitimacy of the law. However, it is not necessary for Parliament to do everything—as Parliamentary time is scarce, this time is best spent on the policy issues, not details.
- The durability and flexibility of the law—Delegation can be important to how a law (and the regulatory system it is part of) performs over time in terms of responding to changing or unforeseen circumstances or allowing minor flaws to be addressed. Delegation can give an opportunity for experimentation. Delegation can also allow emergencies to be dealt with quickly, which can be important at least for short-term solutions.
- The certainty or predictability of the law—If too much policy content is delegated or delegations are given to different decision makers without clearly scoped mandates, clarity about what is required by the law can be undermined.
- The transparency of the law—Layers of secondary legislation can create complexity and fragmentation in a regime, making it difficult for readers to find and understand the law. However, too much technical detail in an Act might make it difficult to navigate.
Particular attention should be paid to empowering provisions that empower a delegate to augment or override or authorise exemptions from, primary legislation. Such empowering provisions should be assessed in the context of the general principles governing secondary legislation. However, they can increase the risk of undermining the separation of powers and so always require careful consideration to ensure that they are both needed and appropriately circumscribed. This is dealt with further in Chapter 15.
One important check on secondary legislation within Parliament itself is the Regulations Review Committee (RRC). When a Bill is before another committee, the RRC may consider any empowering provision in that Bill and report on it to that committee. Officials preparing legislation must therefore be prepared to justify why a power is proposed to be delegated and the scope of that power.
This chapter will help identify those matters that are appropriate for Parliament to delegate, to whom the power should be delegated, what form the secondary legislation might take, and what matters the empowering provision should address.
 Note that the Legislation Bill will remove a distinction sometimes made between secondary and tertiary legislation on the basis that it is unhelpful as often so-called “tertiary” legislation is empowered directly by an Act.
Legislation should not authorise secondary legislation to be made in respect of matters that are appropriate for an Act.
As a general rule, matters of significant policy and principle should be included in an Act. Secondary legislation should generally deal with minor or technical matters of implementation and the operation of the Act. However, there are difficult choices on the continuum between significant policy and technical detail.
Some matters, such as those that affect fundamental human rights in a significant way, are clearly appropriate only for an Act. However, the decision will not always be clear-cut, and some matters may be appropriate for both primary and secondary legislation. Secondary legislation often involves some policy, but this should be at a lower level than the policy in the Act.
The following matters should generally (or in some cases only) be addressed in primary legislation:
- matters of significant policy;
- matters significantly affecting fundamental human rights;
- the creation of significant public powers such as search and seizure or confiscation of property;
- the granting or changing of appeal rights;
- variations to the common law (especially when a common law right is to be entirely taken away, or replaced, by legislation);
- the creation of serious criminal offences and significant penalties;
- the authorization of the levying of a tax, borrowing money, or spending of public money;
- the creation of a new public agency; and
- procedural matters if they, in effect, set the fundamental policy of a legislative scheme.
Most of the items above are subsets of the basic idea that significant policy should be in an Act. Although “significance” will vary from case to case, some indicators are that the policy answers the key questions in the problem addressed by the legislation, that the policy has the potential to give rise to controversy (whether political or otherwise), or that (without this policy decision being made) it would be otherwise unclear what the overall implications of the Bill are.
The following matters should also generally be addressed in an Act but in limited circumstances (as discussed further below) may also be appropriate for secondary legislation:
- amendments to another Act; and
- retrospective changes to the law.
The following are examples of subject areas that may be appropriate for secondary legislation:
- the mechanics of implementing an Act, such as prescribing fees, the format and content of documents, or certain lower-level procedures;
- large lists and schedules of minor details;
- technically complex matters;
- commencement dates;
- subject matter that requires flexibility or updating in light of technological developments in an area;
- material required to respond to emergencies or other matters requiring speedy responses; and
- material that requires input from experts or key stakeholders.
It is not appropriate to empower secondary legislation:
- to fill any gaps in an Act that may have occurred as a result of a rushed or unfinished policy development process;
- to avoid full debate and scrutiny of politically contentious matters in Parliament;
- solely to speed up a Bill’s passage through Parliament; or
- simply to follow a past practice of using secondary legislation on that subject.
The empowering Act should clearly and precisely define the permitted subject matter of secondary legislation and the purposes for which it may be made.
It is normal to specify in an empowering provision that the named delegate is empowered to make regulations (or rules, bylaws, etc) on a defined range of subject matters and for defined purposes. This ensures that the resulting secondary legislation is within the limits intended by Parliament. Before settling an empowering provision, it is advisable to consult those who will implement the Act and make the secondary legislation. This will help to identify the extent of the powers that are needed and in what circumstances those people anticipate exercising the powers. Generally, officials should have a clear idea of the scope and content of secondary legislation when the empowering provision is being developed.
A power to create secondary legislation should be wide enough to enable an Act to be effectively implemented. Some flexibility in an empowering provision is often justified as it can be difficult to be sure exactly how the Act’s requirements will be legally operationalised. However, flexibility needs to be balanced against the need to have clear boundaries about the scope of the power so that it is not unfettered. RRC may criticise an empowering provision if it is drafted so broadly that its boundaries are uncertain.
A rushed or unfinished policy development process does not justify a broad or relatively unfettered empowering provision.
The person authorised to make secondary legislation must be appropriate having regard to the importance of the issues and the nature of any safeguards that are in place.
There are no absolute rules as to who should be authorised to make secondary legislation. Traditionally, secondary legislation is often made by the Governor-General on the advice of Ministers, or is made by the relevant portfolio Minister(s). Key factors to take into account are the extent of policy or value judgements required, the expertise required of the person making the secondary legislation, the degree of political accountability required (reflected in the importance of the issues in question), and what safeguards would apply as a consequence (for example, publication, disallowance, Cabinet scrutiny, or drafting and certification by the Parliamentary Counsel Office (PCO)).
The more significant the power, the more likely it is that it should be exercised by the Governor-General in Council. That will ensure that a full range of safeguards will apply (including Cabinet scrutiny and drafting and certification by the PCO). The more technical the exercise of the power, or the more limited the group it applies to, the more likely it is to be appropriate for delegation to another agency (see Chapter 18.2, which also deals with this issue).
All secondary legislation should be subject to an appropriate level of scrutiny, a good process, publication requirements, and review.
Safeguards provide a vital check on the exercise of the delegated power. The level of safeguards considered appropriate will increase with the significance of the delegated power. The proper purposes of safeguards are to promote:
- a good law-making process (through, for example, requirements to have regard to certain matters or being satisfied that a test is met);
- transparency (through transparent processes and decisions);
- participation (through consultation or requiring confirmation, concurrence, or consent); and
- accountability (through, for example, disallowance via the RRC).
Safeguards can take a variety of forms. They can be substantive preconditions or procedural requirements. They can apply before a power is exercised or provide a remedy after it is exercised.
Safeguards are not, however, a substitute for clearly and precisely defining the permitted subject matter of the secondary legislation and the purposes for which it may be made (see 14.2). Safeguards are not a sufficient remedy for a vague and sweeping empowering provision that gives the decision maker too much discretion.
Standard safeguards that generally apply to secondary legislation are:
- review by the RRC and potential disallowance by Parliament (this applies to secondary legislation that is a “disallowable instrument”); and
- publication (if the legislation is a “legislative instrument”, publication is automatically done on the New Zealand legislation website, but otherwise needs to be stated in the legislation).
Additional safeguards apply automatically to secondary legislation that is made by the Governor-General by Order in Council. It must be drafted and certified by the PCO, will receive Cabinet scrutiny, and will be subject to the 28-day rule (meaning that the legislation must not come into force earlier than 28 days after its notification in the Gazette).
For secondary legislation other than an Order in Council, the empowering Act should usually expressly provide for whether or not it is a disallowable instrument or a legislative instrument, or both.
Other bespoke safeguards may also be appropriate. However, these can increase the complexity of the process (particularly the time and cost) and so need to be carefully designed to ensure that the benefits are captured without too much cost. Examples of these safeguards include:
- The instrument may be made only on the recommendation of a Minister (or on the recommendation, approval, confirmation, concurrence, or consent of some other person) and safeguards may also be attached to that recommendation (for example, the Minister or other person may be required to consult with certain people before making the recommendation, to have regard to certain principles or other matters, or to be satisfied that certain criteria are satisfied).
- The decision maker itself may be required to have regard to certain matters or be satisfied that a certain test is met.
- Preconditions may be included that require that certain things are shown, or certain circumstances exist, before the instrument is made.
- Consultation requirements may be included (see Chapter 19).
- A “sunset” clause may be included (that is, the legislation only remains in force for a limited period of time).
- Provision may be made for the legislation to lapse after a certain period if not confirmed by Parliament through a confirmation Bill (although protection offered by this safeguard may be somewhat limited).
- The reasons for the exercise of the power may be required to be given
If secondary legislation may have retrospective effect, the empowering provision must clearly authorize that in clear and unequivocal terms.
If secondary legislation is intended to have retrospective effect, the reasons for that must be capable of clear articulation and the empowering provision must authorise that effect in clear and unequivocal terms.
If secondary legislation may be made by a subdelegate, that must be clearly authorised in the empowering provision.
The identity or office of the person to whom the power to make secondary legislation is given is a key factor in the particular legislative scheme. Careful consideration should therefore be given as to whether that person should be able to subdelegate a legislative power. If the power to make secondary legislation is able to be subdelegated, the empowering provision must clearly identify that intent.
Will the secondary legislation be inconsistent with rights in the New Zealand Bill of Rights Act 1990?
Legislation should not empower secondary legislation that is inconsistent with the New Zealand Bill of Rights Act 1990.
Secondary legislation that is inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA) will generally be invalid because it falls outside the empowering provision. This is because an empowering provision will generally be interpreted, in accordance with section 6 of NZBORA, to empower only such secondary legislation as is consistent with NZBORA. The only circumstance in which secondary legislation might be valid despite inconsistency with NZBORA is if the empowering provision unequivocally, or by necessary implication, permits rights-infringing secondary legislation. In such a case, the empowering provision (and the secondary legislation it empowers) will prevail over NZBORA because of section 4 (which says that provisions inconsistent with NZBORA are not for that reason invalid or ineffective).