Legislation Bill

Those who have taken the time to read the Legislation Bill—and I suspect there won’t be a huge number of members who have done so—will actually know that this is quite a significant piece of legislation, but it’s one that I don’t expect is going to receive a huge amount of scrutiny in the House, and I suspect the debate will be relatively short. In effect, the Legislation Bill sets out how we make the laws of the country, and if you look at the objectives or the purpose of the legislation, in clause 3, “Purpose of this Act”, it states that the legislation “states principles and rules about the interpretation of legislation:”. That’s a relatively significant thing in the context of what we do. We spend an awful lot of time debating individual enactments, and, actually, it’s the Legislation Act that sets out the parameters in which all other laws are made. So it is quite significant, although, like I said, it doesn’t seem to engender a lot of excitement amongst members across the House.

But what I think is really important about this is—there are two things which I do think are worthy of note. The first is that the bill allows for legislation to be simpler, shorter, and more consistent. I think one of the things that Parliament has been doing over the last 20 to 30 years is work quite hard to make legislation far more accessible, to write things into plain English, so that you don’t have to be a learned scholar of the law in order to understand what the law says. I think that the provisions in this bill continue down that road, and I think that’s a very welcome development.

But, actually, the thing that’s probably most significant about this bill is the changes it makes around secondary legislation. There is a lot of secondary legislation, and that is legislation that isn’t subject to the same level of debate and scrutiny that a regular bill going through the House would be subject to, and we’ve seen, I think, in recent times—again, looking back over the last 20 or 30 years—that the Parliament has enabled, through provisions in primary legislation, for more and more secondary legislation to be created, delegating legislation-making power to the executive, effectively. And there is a lot less scrutiny of that.

So what this bill does, among other things, is it starts the process of consolidating all of that legislation so that it all becomes publicly available. That might seem bureaucratic, but, actually, if you want people to follow the laws of the land, if you want the law to be accessible, to be transparent, then actually bringing it all together in one place, so that one who wishes to follow the law can actually find it, is a relatively significant thing. The bill does that over a period of time, recognising that that’s a significant undertaking. But, in the future—again, like I said, this is not something that I think is going to excite the House at the moment—I hope people will reflect on the fact that it has actually been a significant improvement to the lawmaking process of the country; one that has made the laws of the land much more accessible. I do hope that, in time, the Parliament—and, perhaps, through the Standing Orders review we will do this—will consider how we scrutinise secondary legislation.

One of the things that has been a bit of an eye-opener to me as a Minister is the extent to which one can govern the country without recourse back to the legislative process at all. And, in fact, increasingly, the laws of the land enable the executive to get on and govern the country without having to come back to Parliament. I’m not convinced that that’s always a welcome development. So I think the scrutiny of secondary legislation is something that the House needs to turn its attention to a little bit more in the future. The provisions in this bill will certainly support that process, but they in themselves will not be sufficient.

So, like I said, I’m probably one of the one of the few people in the House that’s interested in this bill. I do think it is a significant piece of legislation, and I would encourage members to pay attention to the lawmaking process as much as they do to the laws that are being created.

It’s so predictable, isn’t it, Madam Chair? I’m very pleased to be able to take a call in this, the committee stage of the Legislation Bill being taken as a whole—with a “w”.

The remarks that we all made yesterday across the House seemed pretty well-aligned in the sense that various contributors to the debate emphasised, actually, some of the key themes that the Minister has set out now in his opening remarks. Items that we emphasised were around accessibility of the law, so there are a number of different aspects to it, not only that the law is easy to understand and that it must be easy for citizens to find their way around the law but also that it’s easy to physically find it.

So a large element of what is being done in this good bit of work is exactly that. It’s enabling those who are affected by the laws to be able to find them. We’ve talked about the visibility of laws, and the Minister’s touched on that from a perspective of the scrutiny that’s appropriate to apply, and I have to say I agree strongly with those comments. There’s also an element whereby if we are to say, in fairness, to a citizen that ignorance of the law is no excuse, then we must allow her or him to be able to know what the law is, otherwise the concept of ignorance is rather meaningless, and a person cannot fairly be held to account for failing to comply with that of which they were unaware.

The distinction between primary and secondary legislation is a little bit technical but—or at least, you know, it’s actually a major distinction—for the benefit of those who are not so steeped in constitutional matters, you might generally refer to Acts of Parliament or statutes as primary legislation, and regulations, broadly speaking, as secondary legislation. I mentioned, yesterday, that legislation that’s secondary in name is not necessarily secondary in importance. Again, I acknowledge the Minister’s actually made that point in his opening remarks about the importance of laws that do touch the lives of ordinary New Zealanders in the way they conduct their personal affairs, business dealings, and all different aspects of their lives as well.

I think it’s worth noting, perhaps, just almost as a one-off, but by way of illustration and a bit of colour, if I can manage that, one or two examples of the kinds of changes that are made, apart from the general effect, which is to shed light upon the regulations that govern our country. So one example that, sadly enough, I found quite interesting is that the bill looks to place beyond doubt that parliamentary counsel appointed with the qualifications required by the bill can use the term “parliamentary counsel” even if they do not meet the requirements of the Lawyers and Conveyancers Act 2006 for the use of the term “counsel.”

It probably goes without saying, but seeing as I’ve got a minute and 56 seconds left remaining in this call—

💬 Hon Tim Macindoe: You don’t have to use it.

—I’m going to say it anyway. I don’t have to use it—how very generous of you. My colleague the Hon Tim Macindoe, I think, probably needs another minute and 56 seconds to prepare his own remarks, so I thought I was doing him a favour, but anyway.

So the general rule, of course, as set out in the Lawyers and Conveyancers Act, is that one cannot pass oneself off to be a lawyer if one isn’t currently holding a practising certificate. I, for example, don’t hold a practising certificate, so I don’t go around claiming to be a lawyer. The term “counsel” as it’s spelt, as distinct from a council—noting the irritating American tradition of referring to the lawyers as counsellors, which sounds even more like councillors. The general rule, of course, is that one can’t pretend to be a lawyer if one is not, and that’s for the protection of those who would seek these services. Notwithstanding that it might be that someone is working doing excellent work as a drafter in the PCO—the Parliamentary Counsel Office—they might not have a practising certificate such that they meet the requirements of that Act that I’ve mentioned. Nevertheless, they have every right to be referred to in that way that refers to their role that they do, and in acknowledging such a large piece of legislation that has been based upon the very good work of a lot of people, it’s entirely appropriate to acknowledge the hard work of the PCO.

On that note, I think my elder and better—my better, in any case; no, elder too—Tim Macindoe will also have some comments, but I’ll leave it there for now, and he will say, no doubt, on behalf of us, that we support the continued passage of this good work at this committee stage and beyond.

Thank you very much, Madam Chair. Can I just start by thanking the Minister Chris Hipkins, who, in his opening five minutes, actually explained what he references is probably a bill that not many of us have read. But I do appreciate that this is a bill that is really important to all members of this House and all New Zealand, because it does exactly what he says. You know, it makes the interpretation of legislation really important as it attempts to bring the law relating to legislation so it’s easy to find, it’s understandable, and it’s of high quality. I want to thank the Minister and the officials, and also I want to acknowledge the Regulations Review Committee whose 2014 inquiry into the oversight of disallowable instruments that are not legislative instruments has led to this piece of legislation. So this bill that we are supporting, obviously, has had a fairly lengthy gestation to get here.

But I just want to pick up on a couple of points that the Minister talked about, and the interpretation of legislation. I actually accept that that’s really important—accessibility. I’m thanking the Minister because when I took a call on this in the second reading last night—I wasn’t on the Justice Committee when this particular bill was considered, but there was a gap around the scrutiny of secondary legislation—I was really pleased that the Minister acknowledged that further work was in there. I actually called upon any fellow members of the select committee that could actually unlock what we meant by further work. So the Minister has given the House the guarantee that absolutely we need to make sure that secondary legislation meets the same test that primary legislation meets. I’m personally interested in how that will play out, what that would look like, what the further scrutiny of secondary legislation would mean. So I’m, really, I guess, laying my absolute interests, Minister, in that part when we pick that up as part of this Government’s work plan around making sure the scrutiny of secondary legislation is right and, I guess, fit for purpose.

But, you know, this is, like I said, a non-controversial bill. It is an important bill. I know it’s not tampering with individual legislation that sits under it. It is around putting it in one place so it’s accessible to all New Zealand. I talked about the cost of doing that. I’m sure that that’s in consideration—that it doesn’t become so costly when we’re accessing it and, as we pass this bill, considering where the pieces of legislation are.

But in terms of the framework—if I can stretch it a wee while—is this principle about relevance. I know we’re not talking about the relevance of legislation; we are trying to bring all the legislation into one place. But in our quest to either modernise language or find it accessible, be able to interpret law—legislation—I think I just want to put a plug in for the growing use of Te Reo. We have it in this House—not just Te Reo; our Pacific languages that we beautifully hear opening our prayers. And if there’s a space in this piece of legislation going forward to acknowledge the various uses of language in this country, I hope that we pick that up, Minister: as New Zealand evolves—the possibility of not just the use of language but some of the principles that sit behind the languages that we hear often throughout this country, the beautiful difference of languages.

So like the previous speaker, I say it is a non-controversial, very important piece of legislation. I acknowledge the work of the Justice Committee who considered it, all the submitters that came, and the officials that worked on it. It is a simple piece of legislation but something that I’m really proud to stand and support in this Chamber and I commend it to the committee.

Thank you very much, Madam Chair, and could I just begin by acknowledging the previous speaker, the Hon Meka Whaitiri, who recently became the chair of the Justice Committee, and say how much I appreciate the very even-handed way in which she is performing that task. I think it is a committee facing some challenging issues but I do appreciate the leadership she’s bringing. Can I also acknowledge Raymond Huo, who’s in the Chamber, who was of course the chair of the Justice Committee at the time that this bill was being considered and he would have chaired the submissions.

Like the Hon Meka Whaitiri, I was not a member of the Justice Committee at the time that the bill was being considered, so we’re both at a little bit of a disadvantage, but nevertheless it’s an interesting piece of legislation, it’s an important piece of legislation, but as the Leader of the House noted, it’s also an extraordinarily dry piece of legislation, and so I think the next acknowledgement should be to the Leader of the House for managing to stand up and speak for five minutes with barely a reference to a note and to sound as if he had a fairly good idea of what he was talking about. I should also acknowledge my very learned and distinguished young colleague Christopher Penk, the member for Helensville. His was a very erudite contribution. I’m not sure that I’ll be able to match it. In fact, I think, rather like my far from illustrious cricketing career, I suspect I won’t be troubling the scorers for all that long.

But it is important just to put on record once again that the National Party is supporting the bill. That won’t come as any surprise to people who are aware of its history because it is a National Party bill. It was drafted after the considerable work of the Hon Christopher Finlayson and the officials who worked with him, and I want to acknowledge all of them for their contribution to it.

I also want to put on record that the Attorney-General, the Hon David Parker—and I commend him for having picked up the bill and for continuing with it—is today moving Supplementary Order Paper (SOP) 394. So there are a couple of amendments and the National Party will also be supporting those. I’m hoping that the Leader of the House, while he’s in the chair, may be able to give us a little bit of an explanation as to the exact reason for the motion in it: “That the enacting words, clauses 1 and 2, Parts 1 to 7, and Schedules 1 to 4 be a separate Bill, and that the enacting words, and clauses 1 and 2 be replaced with: …” and so on it goes. I hope that he’ll give us the benefit of his considerable knowledge and enthusiasm for the reason for that.

But I also note that the commencement dates are quite interesting under clause 2(1)(b): “the rest of this Act comes into force—(i) on 1 or more dates set by Order in Council; or (ii) to the extent not brought into force earlier, on the fifth anniversary of the date of Royal assent.” And that is a fairly unusual provision to find in a piece of legislation. There’s certain to be very good reasons for it but I’d welcome the Minister’s explanation for that slightly unusual matter.

We had a discussion in the second reading yesterday of some of the key features of the bill, and I drew attention to the recommendation of the select committee to produce an exemption for council-controlled organisations because I did think that that was an example that those listening to this debate who may really be struggling to understand what it’s all about might have been able to relate to, because it, essentially, showed that over time with the way in which technology and other advances have changed our access to legislation, we had the slightly extraordinary position where Auckland Transport could do something in one way but the Auckland Council, effectively, touching on the same matter had to deal with it in a different way. And so it is of course appropriate that this bill attempts to deal with that.

Just another couple of matters in the remaining time that I have available: I would invite the Minister to explain how the bill will improve the quality of law in New Zealand by making agencies subject to certain legislative disclosure requirements when developing Government-initiated legislation, because that is an important provision in it. We also note that the bill will conclude the Government’s implementation of recommendations that actually arose from the Law Commission’s work back in 2008 regarding the presentation of New Zealand statute law, and so it is something that has been considered over a decade and, more obviously, that work was initially instigated under the period of the previous Labour Government led by the Rt Hon Helen Clark. So I can see that there’s been a lot of continuity, obviously a lot of thought has gone into it, and I’d welcome the Minister’s insight into that.

And perhaps also the Minister might like to respond to the recommendation of the committee to amend and add transitional provisions in the bill to implement the access to the secondary legislation project in stages—and that obviously is partly relating to the SOP—in particular the requirements for lodgement and publication of secondary legislation. I’m not sure how much enthusiasm the Leader of the House has for those challenges, but there are a few opportunities. And, Madam, Chairman, I can assure you I won’t be troubling you again on this subject this evening.

I will very briefly just respond to a couple from the lengthy list of questions that the member did. I think he did very well to get to the full five minutes and I congratulate him for that. But there is Supplementary Order Paper 394 in the name of the Hon David Parker dividing the bill into two separate bills, which are something we don’t do as often as we used to; we used to divide bills all of the time. The reason for Supplementary Order Paper 394 and for the legislation being divided into two separate Acts is so that the repeals and amendments don’t sit on the end of the main bill in the long term. So, basically, it’s about creating clean legislation, effectively, and that’s the reason for dividing the bill.

In terms of why the commencement clause is drafted as it is, I think it also relates to the member’s question about the staging for the implementation of the secondary legislation clauses. The Government is building, I think, on the work of the Justice Committee, which recommended a staged implementation to publication of aspects of the bill to recognise that it is actually an enormous and complex task of gathering and publishing all of New Zealand’s secondary legislation—and, dare I say it, I hope that they will be able to find it all, because there is quite a large volume of it and I think the process of drawing it together is very important. So that is part of the reason, I think, for the staging that’s set out in the bill.

I seek leave for all provisions to be taken as one question for the purposes of the vote.

CHAIRPERSON (Hon Ruth Dyson): Leave is sought for that purpose. Is there any objection? There is none.

The question was put that the amendments set out on Supplementary Order Paper 393 in the name of the Hon David Parker be agreed to.

Amendments agreed to.

Parts 1 to 9, Schedules 1 to 6, and Clauses 1 and 2 as amended agreed to.

The committee divided the bill into the Legislation Bill and the Legislation (Repeals and Amendments) Bill, pursuant to Supplementary Order Paper 394.

Bills to be reported with amendment presently.