Human rights implications
When developing policy proposals
When developing policy proposals, consideration must be given to their consistency with the New Zealand Bill of Rights Act 1990 (the Act) and the Human Rights Act 1993. An important aim of these requirements is to provide Ministers with relevant information on the implications of any inconsistency with the Act and the Human Rights Act 1993 before policy proposals reach the legislative or implementation stage. It is the responsibility of each department to make its own assessment and sign off on human rights implications in the department’s area of responsibility. In carrying out this assessment, departments should, where appropriate, consult agencies with an interest or experience in human rights issues, such as the Ministry of Justice (human rights policy), and the Crown Law Office (legal advice). Cabinet papers should include a paragraph on the consistency of the proposals with the Act and the Human Rights Act 1993 under the heading “Human Rights Implications”, which:
- states the nature of any potential inconsistencies that have been identified (or states that there are none);
notes the steps taken to address the issues; or
- includes information on any justifications for the policy infringing a right or freedom.
When preparing government bills
The Attorney-General is required by section 7 of the Act 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 Act. In the case of government bills, this must occur upon the introduction of the bill.
The Ministry of Justice (MoJ) provides advice to the Attorney-General in relation to non-Justice bills, and the Crown Law Office (Crown Law) provides advice on Justice bills. All final versions of government bills must be with MoJ/Crown Law at least two weeks in advance of the relevant Cabinet committee meeting (usually LEG) on that bill.
The two week deadline allows MoJ/Crown Law sufficient time to check the bill for consistency with the Act and to advise the Attorney-General accordingly, and also allows the Attorney-General to receive the advice at least a week in advance of the LEG meeting. If a final version of a government bill is not with MoJ/Crown Law at least two weeks in advance of the LEG meeting, the Minister sponsoring the bill should defer submission of the bill to LEG.
Gender analysis assists decision making by examining how gender differences are affected by government action, and communicating that information to decision makers. A gender implications statement is required for all papers submitted to the Cabinet Social Policy Committee.
The gender implications statement should say whether gender analysis has been undertaken and if not, why not. The length of the statement will vary according to the complexity of the proposed policy, the number of alternatives considered, and the extent of the costs and benefits.
Public service departments should be familiar with the vision, objectives, and actions in the New Zealand Disability Strategy. Where appropriate, papers submitted to the Cabinet Social Policy Committee should include a disability perspective, i.e. consideration of the impact of policies and proposals on disabled people. A disability perspective should be included, as appropriate, in relevant papers submitted to other Cabinet committees.
The New Zealand Disability Strategy includes information that is useful to determine whether a disability perspective should be included in a Cabinet paper. For further advice, relevant information can be found on the Office for Disability Issues’ website, or the Office (located in the Ministry of Social Development) can be contacted directly.
Papers seeking agreement to policy/approval for additional resources to implement that policy should be submitted to the Cabinet committee responsible for that area of government activity. The Cabinet committee may refer such papers to the Cabinet Committee on State Sector Reform and Expenditure Control (SEC) for decisions on the financial aspects, if they would benefit from SEC’s scrutiny.
The Minister of Finance may also wish to refer such papers to SEC for consideration in addition to the policy being considered by a Cabinet policy committee. The Minister of Finance will advise the portfolio Minister of this by letter, when consulted on the paper.
Where there are time pressures, and a proposal cannot wait until the next SEC meeting (after consideration by the relevant Cabinet policy committee), further consultation may be required with Finance Ministers and senior Ministers before Cabinet consideration.Papers that only seek changes to baselines, and that do not include any policy decisions, may be submitted directly to SEC, without first needing to be submitted to a Cabinet policy committee.
Drafting financial recommendations
The correct drafting of financial recommendations is essential to record accurately Cabinet’s financial decisions. These decisions provide Cabinet’s authority for changes to appropriations, expenditure, and the use of Imprest Supply. Cabinet Office circular CO (15) 4 Proposals with Financial Implications and Financial Authorities, contains further guidance.For guidance on drafting financial recommendations and the format of tables, see the Treasury’s guide, entitled Writing Financial Recommendations for Cabinet and Joint Minister Papers. The relevant Treasury Vote analyst can assist in ensuring that the financial recommendations are technically correct.
Recommendations that propose a change in appropriation or expenses should include details of:
- the action to be taken (i.e. approve/agree);
- the substance of the change being proposed;
- the name of the affected Votes;
- the type of appropriation/revenue (e.g. departmental output expense);
- appropriation/revenue name;
- if a new appropriation is being proposed, its scope;
- changes to appropriation (both the direction and amount of the changes);
- monetary units – numbers should be stated in terms of $million (e.g. $0.010 million);
- changes to revenue or funding mix;
- GST status, if appropriate (in accordance with the Public Finance Amendment Act 2004, appropriations should be exclusive of GST);
- the years affected, including outyear impact;
- whether the changes need to be included in Supplementary Estimates and met under Imprest Supply;
- the impact on the operating balance and/or debt.
In general, tables should be used to present the information contained in financial recommendations.
Implications of use, long-term lease, or disposal of Crown-owned land
The Crown is not free to use, lease, or dispose of Crown-owned land as it sees fit. Through the Treaty of Waitangi, Treaty settlements, legislation, and Cabinet directives, the Crown has imposed principles, limitations, and obligations on itself that restricts the use, long-term lease, or disposal of Crown-owned land.
When developing policy proposals which involve the use, long-term lease, or disposal of Crown-owned land the proposal must, therefore, contain an assessment of the impact of Treaty of Waitangi principles (i.e. possible opportunities for partnership with iwi or hapu), and the stages of the Crown's property disposal process (Stage 3 of which addresses Treaty settlements). A summary of the Crown's property disposal process can be found here.
For advice on:
- the impact of Treaty of Waitangi principles - departments should consult with the Crown Law Office;
- the Crown's property disposal process - departments should consult with Land Information New Zealand;
- the impact of Stage 3 (Treaty settlements) of the Crown's property disposal process - departments should consult Land Information New Zealand, the Crown Law Office, the Office of Treaty Settlements, and Post Settlements Commitments Unit (part of the Ministry of Justice);
- consulting with or building relationships with iwi groups - departments should consult with Te Puni Kokiri and the Post Settlements Commitments Unit (part of the Ministry of Justice).
Releasing discussion documents
All public discussion documents or reports of a substantive nature commissioned or generated by Ministers, Cabinet or government agencies, and affecting government policy or government agencies, must be considered by the Ministers affected and Cabinet before a date is announced for the public release of the report.
Draft policy or discussion documents should be submitted to Cabinet or a Cabinet committee for consideration under a paper that outlines the purpose and scope of the discussion document, the proposed consultation process, the timing of the exercise, and the subsequent work required for final policy decision and legislation, if required.