Legislation

Cabinet and its committees consider papers on both primary legislation (bills) and secondary legislation (regulations and Orders in Council).  This page summarises the Cabinet processes for legislation, and sets out the information required when preparing papers for Cabinet and Cabinet committees on bills or regulations.

Chapter 7 of the Cabinet Manual provides an overview of the main principles and processes concerning the development of government legislation (see paragraphs 7.19-7.76 for information regarding the development and approval of bills, and paragraphs 7.77-7.96 for information regarding the development and making of regulations).

Officials should also take into account the following guidance on the development of legislation:

• The Guide to Working with the Parliamentary Counsel Office on the PCO website;
• The Legislation Advisory Committee Guidelines on the Ministry of Justice website: Guidelines on the Process and Content of Legislation.

Bills

The legislation programme

Government bills are managed through the legislation programme.  At the end of each year Ministers are invited, by way of a Cabinet Office circular, to put in proposals (bids) for the inclusion of bills in the legislation programme for the up-coming year.  These bids are compiled by the Legislation Coordinator in the Cabinet Office and submitted to the Cabinet Legislation Committee for a decision on which bills are to be included in the programme and what priority they are to be given.

The circular calling for bids for the 2010 Legislation Programme is Cabinet Office circular CO (09) 09.

The legislation programme comprises groups of existing or proposed government bills in descending priority order.  The priorities given to bills for a calendar year are:

Category 1: must be passed or introduced as a matter of law in the year;

Category 2: must be passed in the year;

Category 3: to be passed if possible in the year;

Category 4: to be referred to a select committee in the year;

Category 5: instructions to the Parliamentary Counsel Office to be provided in the year;

Category 6: on hold; or

Category 7: not to proceed.

When submitting bids, use the form for bills seeking priority on the legislation programme.

If Ministers wish during the year to have a bill drafted that is not on the legislation programme, they must make a bid for a priority at the earliest possible time.  This bid should include the information required in the above form.

The legislation programme is amended as demands on the government change, new issues requiring legislation arise, and priorities change with the passage of time.  Details of the legislation programme, and the priority accorded to particular pieces of legislation, are integral to the government's management of its business in the House.

Further information on the legislation programme is available in paragraphs 7.6-7.15 of the Cabinet Manual.

Development and approval of bills

The development of legislation is a complex and time-consuming process requiring careful planning and coordination.  Paragraph 7.19 of the Cabinet Manual summarises the basic process for developing government legislation as follows:

1. decision to pursue a policy proposal requiring legislation;
2. policy development, including regulatory impact analysis;
3. consultation (see the CabGuide section on consultation and paragraphs 7.24-7.45 of the Cabinet Manual);
4. allocation of legislative priority (see the above section on the legislation programme);
5. approval of policy proposals by Cabinet;
6. preparing drafting instructions and further consultation (see paragraphs 7.48-7.49 of the Cabinet Manual);
7. drafting (see paragraphs 7.46-7.47 of the Cabinet Manual);
8. approval by the Cabinet Legislation Committee and Cabinet of the draft bill for introduction (see the next section on seeking approval to introduce a bill and paragraphs 7.50-7.52 of the Cabinet Manual);
9. reference to government caucus(es) and non-government parliamentary parties, as appropriate (see below and paragraphs 7.53-7.59 of the Cabinet Manual);
10. introduction, first reading, and referral to select committee;
11. consideration and report by select committee;
12. remaining parliamentary stages.

Ministerial consultation on legislation

At all points in the development and passage of a bill, Ministers should consider the need to confirm support for the bill from parties representing a majority in the House.  This consultation may cover both the substance of the bill and the proposed process for its parliamentary consideration.

Guidance on the consultation and operating arrangements that have been developed between the National Party and the ACT Party, the Maori Party, the United Future Party and the Green Party is provided in the Cabinet Office circular entitled National-led Administration: Consultation and Operating Arrangements [CO (09) 07].

Cabinet approval to introduce a bill

Once the policy content of a bill has been agreed and the bill has been drafted, approval must be sought via the Cabinet Legislation Committee (LEG) and Cabinet for the introduction of the bill to the House of Representatives.  LEG will examine the bill to ensure that its policy content has been approved by the appropriate Cabinet committee and that the relevant requirements of the Cabinet Manual (see chapter 7 of the Cabinet Manual) and CabGuide have been satisfied.

Cabinet papers seeking approval to introduce a bill (or substantial supplementary order paper) should address the requirements set out in the CabGuide section on papers seeking approval for the introduction of a bill.

Bill of Rights vetting

Section 7 of the New Zealand Bill of Rights Act 1990 requires the Attorney-General to bring to the attention of the House any provision in a bill that appears to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act.  In the case of government bills, this must occur upon the introduction of the bill.  Further information about this process is provided in the CabGuide section on checking human rights issues.

Policy changes to a bill after introduction

The procedures and consultation requirements for government bills also apply to significant changes to a bill that is before the House or a select committee, whether or not the proposed changes are to be set out on a supplementary order paper (SOP) or are outside the scope of the bill as introduced.  The policy content of an SOP may be such that further approvals from Cabinet are needed for new policy or to alter existing policy approvals before the SOP is drafted and submitted to LEG.

Where a Minister's officials advising a select committee are to propose substantive amendments to a bill before the committee, Cabinet should be advised and prior policy approvals should be sought from Cabinet if time permits.

All SOPs that are outside the scope of a bill or that make substantive changes to a bill (particularly SOPs that are to be referred to a select committee for consideration) must first be submitted to LEG for approval.  An SOP that serves a mechanical purpose (such as to "break up" a bill after its committee stage) or promotes minor technical improvements need not go through these procedures.

Further information about the processes around making policy changes to a bill after introduction is provided in paragraphs 7.67-7.72 of the Cabinet Manual. 

Regulations

Development and making of regulations

A first step is always to check the governing Act to establish whether regulations are, in fact, needed to implement a policy or decision.  If the matter falls within the delegated authority of the individual Minister, regulations may not be needed.  The Act should also be checked to see whether it requires that the Governor-General must be advised by a particular Minister to make the regulations in the Executive Council.

Paragraph 7.86 of the Cabinet Manual summarises the steps in the process for developing regulations to be made by Order in Council as follows:

1. identifying the need for regulations (through departmental monitoring and consideration of the relevant statute);
2. developing the policy behind the regulations (if necessary), including regulatory impact analysis;
3. consultation (as required) with:
   • relevant departments
   • government caucus(es)
   • other parties represented in the House and independent members of Parliament
   • affected groups if required by legislation or if otherwise appropriate;
4. submitting the policy (if any) to a Cabinet committee and Cabinet for approval (if the regulations are entirely routine and do not require new policy decisions, the Minister may authorise drafting without reference to Cabinet);
5. drafting by parliamentary counsel;
6. submitting the proposed regulations to the Cabinet Legislation Committee and Cabinet for authorisation for submission to the Executive Council (see the CabGuide section regarding the required information for Cabinet papers seeking authorisation to submit items to the Executive Council);
7. notification in the New Zealand Gazette;
8. a 28-day period before the regulations come into force (see the CabGuide section on the 28-day rule and paragraphs 7.91-7.94 of the Cabinet Manual);
9. publication in the statutory regulations series.

Timeframes

Departmental planning must take account of the time needed for all of these steps, allowing room for slippage at all stages.  An absolute minimum of six weeks should be allowed between the completion of the drafting of the regulations and the date on which the regulations come into force, assuming all preceding steps have been completed satisfactorily.  The CabGuide Tools section includes a flowchart on the process for making regulations after policy approval.

There will be some weeks during the year when Cabinet committees and/or Executive Council will not be meeting. This can add further weeks to the process, and should be taken into account when planning the development of regulations.  The indicative timetable for Cabinet, Cabinet committees and the Executive Council is available on the Public Sector Intranet (link only available to people with access to the PSI).

Seeking approval to submit regulations to the Executive Council

Once the policy content of a regulation has been agreed and the regulations have been drafted, authorisation must be sought via the Cabinet Legislation Committee (LEG) for the item to be submitted to the Executive Council.  Cabinet papers seeking approval to submit an item to the Executive Council should address the requirements set out in the CabGuide section on papers seeking approval to submit an item to the Executive Council.

Amongst other things, the Cabinet paper should:

• include a statement about any inconsistencies with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.  This must state the nature of the potential inconsistencies identified, or state that there are none, and note the steps taken to address the issue, or include information on any justifications for the bill/regulations infringing a right or freedom;
• indicate whether there may be grounds for the Regulations Review Committee to draw the regulations to the attention of the House of Representatives under Standing Order 310.  This Standing Order provides the Regulations Review Committee with the power to draw the attention of the House to regulations that trespass unduly on personal rights and liberties (including the rights and freedoms in the New Zealand Bill of Rights Act and the Human Rights Act).

The following documents are prepared by the department and/or Minister's office and must be submitted to the Cabinet Office with the paper seeking approval for the submission of regulations to the Executive Council:

• a CAB 100 form - as required for all Cabinet/committee papers, the form certifies the consultation undertaken.
• an advice sheet - this is a printed form on buff coloured, high-grade paper. Departments need to provide advice sheets from their own supply. Copies can be obtained from most printers.
• a letter from the responsible Minister to the Governor-General referring to any statutory prerequisites (if relevant).

Further information about the Executive Council is provided in the CabGuide section on the Executive Council and the Governor-General.