Statutory prerequisites for regulations

When submitting regulations or Orders in Council to the Executive Council, it is important to ensure that any statutory prerequisites are met before the item is submitted for the Governor-General's signature in Council.

What is a statutory prerequisite?

The empowering provisions of some Acts require that a certain procedural precondition (a statutory prerequisite) be met before regulations or an Order in Council can be made.  Examples of statutory prerequisites include:

• a statutory requirement that an Order in Council only be made after the Minister has consulted with specified persons or bodies;
• a statutory requirement that an Order in Council only be made if the agreement of particular persons or bodies have been obtained.

Sometimes the requirement is straightforward - for example, simply requiring the Minister to consult with another portfolio Minister.  In some cases the requirement is more complex, and meeting the requirement may not be wholly in the Minister's power - for example obtaining the concurrence of a consultative body.

How to establish if a statutory prerequisite applies?

Any statutory prerequisites will be identified in:

• the regulation-making provisions of the empowering Act;
• the enacting statement of an Order in Council drafted by the Parliamentary Counsel Office (found on the front page of the Order in Council, directly preceding the contents section). 

Referring to statutory prerequisites in Cabinet papers

If a statutory prerequisite is identified, the matter should be referred to in the compliance section of the Cabinet paper seeking authorisation to submit an item to the Executive Council.  The paper should include:

• a description of the statutory prerequisite;
• if needed, an explanation of how the requirement was met;
• a sentence stating that the requirements have been met.

This information should also be reflected in the recommendations of the Cabinet paper, in the following format:

note that [describe the statutory prerequisite, eg: section x of the x Act requires that before recommending the making of an Order in Council under this section, the Minister must be satisfied that consultation with x has occurred];

note the advice of the Minister of X that this requirement has been met.

Advising the Governor-General about a statutory prerequisite

If a statutory prerequisite is identified, a letter must be prepared from the responsible Minister to the Governor-General.  The letter should closely follow the template below - describing the statutory prerequisite, the steps that have been taken to address the prerequisite (for example, list any organisations that were consulted with), and confirming to the Governor-General that the requirement has been met.  The letter, signed by the Minister, should be submitted to the Cabinet Office at the same time as the Cabinet paper and related material seeking authorisation for an item to be submitted to the Executive Council.

Related pages

Executive Council and the Governor-General

The structure of papers regarding items for the Executive Council

Accompanying documentation for items going to the Executive Council