Legislation Bill

Part 3 is an important part of the Legislation Bill. It does two things in substance. First of all, it replaces the current definition of “regulations” contained in the Regulations (Disallowance) Act with a new definition, “disallowable instruments”. It describes what such instruments are. It goes on to replicate in substance some of the provisions of the disallowance legislation, which are necessary for the operation of the Regulations Review Committee, and it determines the circumstances in which material may be incorporated by reference into delegated legislation.

I want to speak about each of those issues, because each of them is a matter that has been considered on a number of different occasions by this House, but also often on reference from the Regulations Review Committee itself. First of all, on the issue of what will now be a disallowable instrument, the definition of the new type of instrument, for want of a better term, is set out in clause 37 of the bill. Clause 38 also provides some elucidation on the term.

I know that when members look at the clauses, they will think that this is an odd way, perhaps at first blush, of going about the definition, because it is going to be possible only to determine whether or not an instrument falls into the category of a disallowable instrument through a relatively complex process of analysis. But this decision has been made deliberately, as members who read the report of the Regulations Review Committee will be able to see, and it is done in the interests of ensuring that the House is able to deal with the widest category of delegated legislation, something that is not as satisfactorily able to be done as it might be, in reliance only on the definitions that are contained in the current Regulations (Disallowance) Act and in related Acts.

I think it will be very much a matter of having a look at how experience unfolds with the definitions that are set out in clauses 37, 38, and 39 before the House can determine whether or not this is the right approach, but it was the approach that commended itself on advice to the Regulations Review Committee, and it is, I think, a worthwhile experiment to be getting on with.

The next important parts of Part 3 are contained in clauses 40, 41, and 42. They deal with the procedure that is to be followed when disallowance of an instrument is to occur. Clause 40 sets out the general principle that the House is the master of delegated legislation; that any piece of legislation made under the authority of a statutory instrument or under the prerogative of any other type of subordinate legislation must always be subject to the ultimate control of the House. Clause 40 sets out that principle, and clause 41 goes on to describe how disallowance should be able to occur.

Basically, disallowance may be by motion. Then there are the particular provisions, in complement to the Standing Orders, that govern the Regulations Review Committee’s procedures; the provisions that provide for that committee’s particular ability to exercise oversight of delegated legislation. These are effectively a re-enactment of the provisions of the Regulations (Disallowance) Act.

The scheme will be well known to a number of members but perhaps not to all members, and the effect of the Standing Orders and the convention is this: if somebody makes a complaint to the Regulations Review Committee, the committee hears the complaint, and a member of the committee determines that the complaint has substance, then that member is entitled to come to the House and put a resolution to disallow the particular instrument on to the Order Paper. The Government of the day has 21 sitting days in which to bring on a debate about the disallowance motion. It must do that, and if it fails to bring on the debate, then the effect of that failure is that the—as it will now be—disallowable instrument will lapse.

Listeners might think “Well why does that matter? The only consequence of a disallowance motion is that after 21 days there has to be a debate.” Well, the scheme of the current Act, which this bill continues and which the Standing Orders complement, is one of transparency. If there is, to use a colloquial expression, something fishy about a piece of delegated legislation, then a member who has heard the complaint about it can bring that piece of legislation to this House and up to 2 hours of precious sitting time can be taken out of the legislative programme in order for it to be debated—that is, if the Government does not, as it so often does, simply agree to amend the offending piece of delegated legislation through a process of negotiation or agreement, which is, of course, the way that about 90 percent of the Regulations Review Committee’s work is done.

I think it has been a satisfactory means to exercise oversight of delegated legislation to date. This bill does not extend the mandate of the committee in any way, but it would be timely, I think, at some point for the House to consider whether overseas experiments with substantive review of legislation itself, against particular principles of good lawmaking, or particular pieces of legislation such as a Bill of Rights, might be an appropriate role for a committee. But at the moment we are not in that territory. It is simply a question of the legislation being re-enacted so as to apply only to delegated legislation—as I have said, the new term will be “disallowable instrument”.

The last point that I really want to make in this contribution relates to what Subpart 2 will do over incorporation by reference in instruments. It has been a concern of the Regulations Review Committee for some time that delegated legislation can make reference to extraneous material that is not contained within the four corners of the instrument itself.

For example, the material might be in a treaty or in rules made by an international body that New Zealand has agreed to cede some power to by becoming party to a treaty. Those rules might exist in some place outside New Zealand. They might exist on the internet, or they might exist in some other place. The issue of accessibility arises in respect of the particular rules that are made the law of the land but do not appear in writing in any easily accessible spot.

What Subpart 2 of Part 3 of the Legislation Bill does is try to put some limits on the way in which delegated legislation will be able to incorporate such material by reference. I think the rules are sensible, and they will improve the way in which such material does become part of the law of the land. The provisions that are proposed will certainly increase accessibility in ways that the select committee has previously recommended. I certainly commend the subpart to the Committee.

Thank you for the opportunity to participate in the debate on Part 3 of the Legislation Bill. I think that the Government member Alfred Ngaro, who was speaking on the previous bill, the Local Electoral Amendment Bill (No 2), was referring to this bill when he talked about it being intended to modernise and improve the law regarding the publication, availability, reprinting, revision, and official versions of legislation and bring them together into one piece of legislation, which is precisely what this bill does.

I sat on the Regulations Review Committee when it undertook the inquiry relating to incorporating material by reference, which is a particular feature of Part 3 of this bill. The reason that I wanted to perhaps invite the Minister to take a call on this particular matter is that it is an issue that I do not actually know the answer to, and in a way it was not something that was specifically dealt with in that particular review. What this particular part of the legislation does is that it essentially says that you can incorporate into the legislation by reference another instrument, as my colleague Charles Chauvel has pointed out. But what it means, essentially, is that if there is a subsequent change to that instrument, then it does not have to be specifically mentioned in the legislation that the changes to that instrument are, in fact, incorporated, because it is always speaking to the present tense.

But the one issue is around making copies of the proposed material available free of charge on an internet site maintained by, or on behalf of, the administering department, unless doing so would infringe copyright. Of course, that deals with the whole of the building code. I have always actually wanted to know the answer to this question, because, as I say, I do not know the answer to this question. We have as one of our fundamental provisions in relation to building regulation in this country our building code, but because the Standards Council is not able to obtain any public-good funding for the work that it does—

I am sorry to interrupt the member, but the time has come for me to report progress.

House resumed.

The Chairperson reported progress on the Legislation Bill and no progress on the International Finance Agreements Amendment Bill.

Report adopted.

The House adjourned at 9.55 p.m.