Regulations and Executive Council
Are regulations needed?
A first step is always to check the governing Act to establish whether regulations are, in fact, needed to implement the 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 in Council must be advised by a particular Minister to make the regulations.
What is the Executive Council?
Approval process for regulations
There is a 4 step approach to Cabinet committee approval for regulations to be submitted to the Executive Council. (These steps come after the process of ascertaining that regulations are actually required by the governing Act; determining whether statutory consultation is required; and the usual consultation and policy development processes required for all papers prior to their submission to a Cabinet committee.)
Step 1: Policy decisions on the contents of the regulations need to be approved by a Cabinet committee in the usual way. This includes getting agreement to any fee changes. (If the regulations are entirely routine and do not require any new policy decisions, the Minister may authorise drafting without getting the prior approval of a Cabinet committee.)
Step 2: Once the policy decisions have been made by a Cabinet committee and confirmed by Cabinet, the drafting instructions are forwarded to the Parliamentary Counsel Office (PCO).
Step 3: After the drafting process, certified regulations are submitted to the Cabinet Legislation Committee (LEG). Cabinet confirms (or otherwise) the decisions of LEG as to the suitability of the regulations for submission to the Executive Council.
Step 4: Regulations are submitted to the Executive Council.
Checklist for developing regulations
The structure of papers seeking approval for the submission of items to Executive Council
What items can go directly to Executive Council?
Accompanying documentation for regulations going to Executive Council
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:
- CAB 100 form - as required for all Cabinet/committee papers, the form certifies the consultation undertaken.
- 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.
The advice sheet should have the following words typed on it after the words "recommended to":
"sign the attached Order in Council making the [exact title of the document]".
The advice sheet must be signed by the Minister, with the Minister's title typed below the signature. It cannot be the title of an Associate Minister, even if the Associate Minister has delegated authority. The advice must come from the Minister provided for in the Act. Another Minister can sign on behalf of the portfolio Minister, above the portfolio Minister's title. In such cases, the word "for" should be written next to the Minister's title.
If the Governor-General is overseas, then the Administrator of the Government fulfils the Governor-General's functions. The Administrator of the Government is the Chief Justice of New Zealand. In such cases use the advice sheet for the Administrator of the Government. Copies can be made by most printers. The Cabinet Office advises Ministers' offices and departments when the Governor-General is going to be overseas.
When both the Governor-General and the Chief Justice are overseas, the next most senior member of the judiciary acts as the Administrator of the Government.
The following documents are prepared by PCO and ideally should be submitted to the Cabinet Office with the paper. PCO endeavours to provide these documents to departments or the Minister's office prior to the deadline, but this is often not possible - for example, because of last minute drafting issues. In such cases, PCO will forward the documents to the Cabinet Office under separate cover. Copies of regulations arriving after the deadline mean that the Cabinet Office may be unable to process and distribute the paper to Ministers on time. Where the copies of the regulations arrive after the deadline, the paper will be counted as being late.
- Signature copy of regulations - if the item was drafted by PCO, the signature copy will be printed on buff coloured, high-grade paper. It is not a requirement that buff coloured paper be used but the paper must be high-grade.
- Certified copy of item - if the item was drafted by PCO, they will stamp a copy of it with "Certified in order for submission to Cabinet" and it will be signed by a parliamentary counsel. The PCO file number at the top of the certified copy must match the file number written on the back of the signature copy with the PCO stamp. If the item was drafted by a department, the office solicitor must certify it.
- Copies of the regulations - the Cabinet Office requires 50 copies plus the certified copy for the LEG meeting. In the rare case where the regulations are to be submitted direct to Cabinet, 35 copies plus the certified copy are required.
Publishing Executive Council items in the New Zealand Gazette
