This is a single section from Chapter 14. Read the full chapter here.

Is the secondary legislation subject to appropriate safeguards?

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

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