Some specific types of empowering provisions
This is a single section from Chapter 15. Read the full chapter here.
The interaction of secondary legislation with primary legislation
Legislation should empower secondary legislation to amend or override an Act only if there is a strong need or benefit to do so, the empowering provision is as limited as possible to achieve the objective, and the safeguards reflect the significance of the power.
The nature of secondary legislation is that it generally takes effect subject to all primary legislation. It is possible, however, for secondary legislation to amend or override an Act. This requires that Parliament enact an empowering provision expressly authorising secondary legislation with that effect. Empowering provisions of this nature are sometimes called “Henry VIII clauses”.
By virtue of the fact that this type of empowering provision enables the Executive to override Acts of Parliament, these provisions create a risk of undermining the separation of powers. However, such clauses come in various types and, although each must be carefully considered, they do not all raise the same level of constitutional concern.
Towards one end of the spectrum are powers to adjust legislation in such a narrowly circumscribed way that the policy for the adjustment is fully or largely set by Parliament and the subject matter would in any case be appropriate for secondary legislation. Examples include adjusting an amount to reflect changes in the New Zealand Consumer Price Index, adding to a list of types of people under a test set by an Act or, one step further, defining terms that do not set the scope of the Act (so are not central to the policy or principle of the Act). That type of empowering provision amends an Act by augmenting it. If the power is appropriately limited and the matter is otherwise appropriate for secondary legislation, it augments the Act in a manner that is consistent with Parliament’s intention and that does not pose significant constitutional risk.
At the other end of the spectrum is an empowering provision that permits secondary legislation to override an Act in ways that affect its policy or, more significantly still, that amends other Acts. Examples include emergency powers created for post-earthquake responses or epidemics. These types of powers pose more risk, require strong justification, and need very careful designing of appropriate safeguards.
In each case, the questions to be asked are:
- Why delegate this power? What is the need or benefit that justifies delegating the power to amend the Act? Examples of a justification include that there is:
- an emergency that requires a quick response;
- a complicated transition between two statutory regimes; or
- a benefit to the public in having an amount (or list) stated (and so easily accessible) in the Act but also able to be easily adjusted over time.
- If there is a need, what is the extent of delegation that is being permitted? What is the significance of the policy being delegated? How does that compare to what would generally be appropriate for delegation under 1? As noted above, there is a spectrum. The larger the delegation, the greater the constitutional risk or significance, and so the greater must be the justification or need for the power. If it is judged that the power is needed, the empowering provision must be drafted in the most limited terms possible to address the need, and it must be consistent with and support the provisions of the empowering Act.
- If the power is justified, what additional safeguards are needed? A delegated power to amend an Act will necessarily be legislative (see 2). The safeguards that apply to all secondary legislation under the Legislation Act 2019 (publication, presentation, and disallowance) will apply as a result. However, additional safeguards should be designed to address the risks posed by the actual provision. Safeguards may include:
- requiring consultation with people or bodies likely to be affected;
- providing that the power to make the secondary legislation is exercised by the Governor-General in Council (so at the highest level of delegation);
- for broader powers:
- limiting the time period within which secondary legislation that amends primary legislation is possible (for example, including a “sunset clause”, so the power exists only for the reasonable period of a transition from one regime to another);
- establishing a review panel to consider and report to Parliament or the Minister on the use of the power; or
- making the use of the power subject to parliamentary approval (rather than only disallowance).