Secondary Legislation Bill

I move, That the Secondary Legislation Bill be now read a first time. I nominate the Regulations Review Committee to consider the bill.

This Secondary Legislation Bill is affectionately known in the Parliamentary Counsel Office and departmental agencies as “the slab” because it is a slab of a bill. It runs to over 300 pages and much of it is detailed cross-references to the many, many Acts that are amended by the bill. It’s the result of painstaking work, not just in Parliamentary Counsel Office but in the legal and policy teams of more than 30 Government agencies that administer the primary legislation that is affected. This touches upon 150 bodies and agencies that Parliament has empowered to make what is soon to be called secondary legislation.

The bill amends over 2,500 provisions in some 550 Acts. As a result, this bill touches the full spectrum of New Zealand’s statute book. But the real importance doesn’t lie in statistics; it’s actually what it does in terms of aiding access to the law. At a general level, the Chief Justice, the Rt Hon Dame Helen Winkelmann, said in her swearing in speech earlier this year: “Without knowledge of the law, many don’t know they have a problem with which the law can help them.” Indeed, on another inquiry recently or in recent years following the milk contamination scare that affected our exporters of milk, the inquirer found that she could not even be sure what the law was that applied to milk exports, because there was uncertainty as to which—what we’re now calling—secondary legislation instruments were in legal effect.

This Secondary Legislation Bill—there needs to be credit given to those who have been behind it because it’s been under development for a while. The former Attorney-General, in part because of that inquiry that I’ve referred to, instigated work through his ministry on the secondary legislation that has led to the bill that’s already been enacted—the Legislation Act 2019—and began work on this bill. It was also a consequence of work that was done by the Regulations Review Committee at that time, and I’ll come back to that later.

This works by implementing a definition of secondary legislation, which appears in section 5 of the Legislation Act 2019. This bill linked to that by implementing the provision in that Act, which says secondary legislation falls within that definition if it’s stated by an Act to be secondary legislation. So this bill gives effect to that by inserting statements into all of those various enactments that create secondary legislation across the relevant points of the statute book. In doing so, it makes it clear what instruments are secondary legislation and, therefore, what law applies to them or what legal effect they have. By enacting this bill, Parliament will replace the complex and overlapping definitions of the types of delegation that are currently determined as legislative instruments, disallowable instruments, and, with them, disallowable instruments that are not legislative instruments. As those who sit on the Regulations Review Committee know, they’re known as DINLIs. All of these complex definitions are actually being replaced by one simple, coherent category of secondary legislation.

The Regulations Review Committee has helped us get to this point. In its 2014 report, which wasn’t a bestseller but was entitled Inquiry into oversight of disallowable instruments that are not legislative instruments, that committee recommended that the Government introduce legislation to ensure that every empowering provision, whether in an Act or in delegated legislation, and whether already made or being made, state which category the instrument falls into. And that’s quite simply what this bill does. It simplifies things.

For the record, it’s important that I state that it’s not the bill’s policy to change the scope or legal effect of empowering provisions or to affect the validity of instruments already made under them. The fact that an instrument is identified as secondary legislation does not widen the power under which it is made, nor does the failure to identify an instrument as secondary legislation narrow that power. It’s important we say that because, despite the best efforts of officials, they may have missed one or two of these secondary legislation instruments, and we don’t want those legal instruments to be ineffective by the fact that they’ve been missed. If they have been missed, they will be cleaned up in the fullness of time.

As well as identifying what instruments are secondary legislation, the bill sets out some exemptions from the general publication requirement for secondary legislation. The exemption will also apply to the presentation and disallowance requirements of the Legislation Act 2019. These exemptions do raise questions of constitutional significance because they limit the ability of the House to monitor the actions of the executive. Some exemptions are included because the secondary legislation they apply to contains sensitive information that should not be publicly disclosed. Most of these exemptions that are listed in the bill continue the status quo, as Parliament has already conferred powers to make secondary legislation in some circumstances that contains sensitive information. A few other exemptions are proposed to reconcile discrepancies between the current statutory provisions and the framework that is set out in the Legislation Act 2019.

There is, of course, a tension between protecting sensitive information in some secondary legislation and the general principle that the law should be publicly accessible and subject to parliamentary oversight. The issue of exemptions is therefore one on which I’m sure the Regulations Review Committee will have something to say, and I look forward to reading their recommendations on this aspect of the book—bill. [Interruption] Ha, ha! That was a slip of the tongue—following their consideration of it.

The publication requirements that applied immediately before the commencement of this bill will be preserved for the time being. We are moving to centralised publication requirements for secondary legislation, but it will take effect later, when commenced by Order in Council. At the end of this process, we will have a more coherent record of New Zealand’s legislation. It will be more easily understood by the people who are meant to comply with it, and it will be easier for people to access. This is an extraordinary bill, not just because of its size. The bill represents the culmination of work by successive Governments to make our statute book fit for purpose in the modern age, and I look forward to the Regulations Review Committee consideration of it. I commend the bill to the House.

Thank you, Madam Speaker. It is a book, it is a brick, and it is a wad of 300 and more pages. It does affect, as the Minister said, more than 500 Acts and 5,500 provisions. In a way, we can’t describe the amount of work that has already gone on in this bookmark—this wedge of paper. Since 2014, it’s come out of the inquiry. As the Minister said, hundreds and hundreds of people have been involved in it. Hours and hours and hours of work have been put into this piece of legislation.

I’ve been a member of the Regulations Reviews Committee for only a short time. It’s quite a different language that’s used in there. We talk about “instruments”. I mean, I thought that was always part of an orchestra. You confirm an instrument—

💬 Barbara Kuriger: Or a doctor.

—or a doctor, yeah. So you’re talking about disallowable instruments. We passed some legislation earlier this afternoon which related to some disallowable instruments, when we talked about the ammunition that was banned and compensation not able to be made for that—very technical in its current form. The Minister quite rightly says people just don’t know where to find the legislation. It’s not impossible but there’s high risk of the legislation not being able to be found in its current form. This will make our legislation much more easily understood, accessible, coherent, and enable people to make full use of the law for themselves and their communities, which is obviously a good thing.

As I say, I can’t emphasise the amount of work that I can see in this bill, and I can’t do justice to the amount that has been put in it so far. We will do our best as the Regulations Review Committee to wade through it and make recommendations as the Minister has asked for. With that, I wish you a merry Christmas and I commend this bill to the House.

Thank you. The question is that the motion be agreed to, which is what I should have said before calling Alastair Scott.

Madam Speaker, and I will be speaking in support of agreeing to the motion because this is a very good bill. It’s one of the first bills that I encountered discussion about when I was a new member and I took up a role on the Regulations Review Committee. As the previous two members who have spoken reflect upon, it’s a bill which has been in the works for quite a number of years. I’m, in fact, reliably informed that the original report of the Regulations Review Committee, which kicked off this work, is still available. So, perhaps, if people are looking for a bit of a stocking stuffer, a late Christmas present to set the pulses racing, there you go for that very special person in your life.

But it is an important piece of legislation because it really goes to the transparency of the way in which this Parliament makes laws and effectively allows laws to be made. I think it’s true that many New Zealanders wouldn’t, in fact, appreciate that many of the laws that apply to them are not necessarily laws that have been, in and of themselves, debated and agreed to in this Parliament. They are laws, effectively, that this Parliament has delegated for agencies to make. We have, over the years, called them by a variety of names, but often it has been quite obscure to actually understand what the status of those are and to find a clear record of them so that people can have transparency about the laws that apply to them, and the Minister who opened up the debate gave some good, clear examples of that.

So it’s an important piece of legislation, and it’s been a significant body of work to comb through hundreds of pieces of legislation and to really clearly define what does make the cut as secondary legislation that the provisions of this bill will apply to. I think one of the most exciting—or “exciting” maybe is the wrong word—one of the most important things that will happen next in terms of public transparency is to actually give some visibility through a clear online capacity for people to be able to access secondary legislation that might affect them in their personal or their business lives.

As I’ve said, it’s an important piece of legislation. It may seem a bit dry, it may seem a bit technical, but as a Parliament we should always be striving to open up the way that we make laws and the way that laws affect citizens of this country, and this piece of legislation, in its own way, makes that contribution. So I acknowledge that this Minister, the previous Minister the Hon Chris Finlayson, and the Regulations Review Committee, and others, actually particularly Parliamentary Counsel Office and other parliamentary staff, have put an enormous amount of work into getting this piece of legislation to the point that it is at, and I commend it to the House. Thank you.

Thank you, Madam Speaker. I know that the senior Government whip is a very lovely man, and after listening to that speech, I just want to assure him that, despite his generosity, he has absolutely no need whatsoever to think about getting me a Christmas present, because, listening to what he has in mind for some of his family, I can probably do without. Yuletide felicitations have broken out all across the precinct; so I want to wish all members the compliments of the festive season, which, I guess, is a pretty archaic and pompous way of saying merry Christmas to you all. I hope that everybody will have a well-earned break because, actually, the vast majority of members of Parliament, irrespective of our political differences, are caring and likeable people, and it’s nice occasionally to be reminded of that fact.

💬 Hon James Shaw: Especially you, Tim.

Mr Shaw, that is a very kind comment, thank you. I’m responding to it so that it gets put on the Hansard record.

I want to acknowledge the Attorney-General who has introduced this bill. I give him credit for picking up another very good piece of the National Party’s legislation. I will point out that this has languished on the Order Paper now for two years; so we’re in the first reading more than two years after his Government took office. I was pleased that he gave credit to his predecessor, the honourable—I want to acknowledge him for giving credit to his predecessor, the Hon Christopher Finlayson, who, of course, had a considerable input into this bill, but also the others who he’s mentioned.

I am taking this call in my capacity as the shadow Attorney-General, but I have to say I’m absolutely delighted to hear that the bill is not coming to the Justice Committee but is instead going to the Regulations Review Committee, which I know will be ably chaired by my very good friend and colleague the member for Wairarapa. I wish him and all his colleagues all the joy that their consideration of this weighty tome could possibly give them.

Now, I wouldn’t want to be chastised for reading any of my speech but I have to say that I would struggle to make a detailed analysis of this particular measure without occasionally looking down on a few notes. It is, as others have noted, a bill of 307 pages; so perhaps I could just open it at any page and read some of it to you. Although, looking at that, that would be rather difficult. I might find myself resorting to a speech of the same level of excitement that we had from the Attorney-General, who should probably know that, if he’s ever invited to deliver a speech, an after-dinner speech, at one of those riotously entertaining law students’ gatherings that they sometimes have, that probably wouldn’t be the speech to deliver on that occasion. But I am looking forward, however, to seeing him in the chair during the committee stage of the consideration of the bill because I think we can have a bit of fun at that point. I’m sure that he’ll look forward to the questions that will come from it.

I did try to listen intently to the Attorney-General’s speech, but I did find that increasingly difficult as we went through. I’m not sure that I share his enthusiasm for reading the Regulations Review Committee’s report after their consideration of the bill; but, if they have to do all this work on it, I suppose that’s the very least we can do. I can only hope that their analysis might be slightly more enlightening and uplifting than his was.

It is, nevertheless, an important development in our legislation. Earlier in the year, as the Attorney-General and others have noted, the House passed the Legislation Bill to make it easier to find and access secondary legislation by requiring it to be published on the New Zealand Legislation website alongside Acts of Parliament. I daresay, for most members of the public who might be listening, although at this stage I imagine there’ll be very few of them, they could well have assumed that that had always been the case.

💬 Greg O’Connor: There’ll be less now.

Yes, Mr O’Connor; even though the correct term would have been “fewer”, you are, on this occasion, correct in that. I’m pleased, also, to have been able to put that into the record. I have completely lost the thread of my sentence but I doubt whether that’s an issue at all for anybody.

This is a bill that responds to detailed work, as has been outlined by the Regulations Review Committee back in 2014. It reflects work of the Productivity Commission, the current Attorney-General and his officials, and their predecessors. So I want to acknowledge all of that and just focus on two quick points because I’m going to be in trouble with the whip who told me to keep this fairly short. In the report, the committee—

💬 Dan Bidois: Keep going.

I could possibly see—there’s a sort of dissension in the ranks back here, and this is causing me a little bit of grief, because I believe that this will probably be my last speech in the House for the year. I would have hoped that it might have been heard with a little bit more respect and gravitas, but I am very, very pleased that the co-leader of the Green Party is showing me all the respect that I don’t deserve, and I thank him very much for that. Where was I?

💬 Simeon Brown: I don’t know.

No, nor do I. The report highlighted the difficulties faced in identifying which instruments are disallowable. That will be an issue that the Regulations Review Committee, in all seriousness, will need to look at, and which the bill is, quite rightly, addressing, because it’s all about making our law more accessible, more easily understood, and, therefore, opening up the law to—I don’t know whether you can use the word “layman” nowadays, but—the average man or woman on the street, rather than it being the preserve of lawyers in stuffy cloisters. That is a good thing.

The new Legislation Act establishes a single category of secondary legislation to replace the current complicated definitions of legislative instruments in the Legislation Act 2012. Having a single category for secondary legislation will make it easier for individuals and organisations to find the law, as I’ve just said.

So this is, all jokes aside, an important measure. I welcome its introduction into the House. It sounds as if it will be broadly supported. That’s a good thing, and I’m sure you’ll all be delighted to hear that I really don’t think I need to say anything more. Again, I wish you all a very merry Christmas.

Thank you, Madam Speaker. I rise on behalf of New Zealand First to speak on the Secondary Legislation Bill. I was going to take a longer contribution but the National Party whip has requested that I now cut myself short because Tim Macindoe went far too long. I would like to say that Mr Macindoe is a lovely man. I’ve often said that Mr Macindoe is a lovely man, and the way that he insults others so nicely through his speeches, it’s a skill. It’s a skill that should be acknowledged and there should possibly be an award for it.

It’s a very good bill; others have said so. It’s highly technical. It has covered two Governments. It is—I’m going to take David Parker’s word for anything. We commend the bill to the House.

I have to join with other members and say I can’t get super excited about the Secondary Legislation Bill. It is a tidy up of law books around some pretty important constitutional principles about the sovereignty of Parliament and making sure that our secondary legislation does not contravene that, and also to try and make our law as accessible as possible. There will be only one new point that I would like to add to the debate and to challenge members: we spend a whole lot of time in this place passing new laws. Isn’t it time we spent some on actually getting rid of some of the laws that have out-served their time?

Can I just recite a few of the bills that we are amending in this law—I was interested to find that we are going to amend the Nelson coalfields Act of 1892. Now, there’s not been a coalmine in Nelson for my entire 30 years. I don’t think that there has been a coalmine in Nelson for about 80 years. I think it might be time that the Nelson coalfields Act—or can I try you another one? The Stratford Electric Lighting Act of 1898—I’m not sure that that specific Act of Parliament for enabling Stratford to be lighted is still needed. There’s another one here: the Rotorua Borough Act. We actually got rid of boroughs about 34 years ago; so I really do wonder whether we still need a Rotorua Borough Act.

So I acknowledge the Attorney-General; I acknowledge his predecessor, Chris Finlayson. It is a worthwhile job to have a sort out of our legal books and to make them more understandable, but the challenge I’ve got for the Regulations Review Committee and Alastair Scott—in true values of the National Party—is that, before we think about making new laws, could the committee also spend some time and repeal some of the old ones that have out-served their day? In a small, nuanced way, we would have made—

💬 Simeon Brown: What about the Auckland regional fuel tax?

And my colleague says, “the Auckland regional fuel tax”; I’d be happy for that to go as well, but it might be a little bit more contentious, actually. To have a clean-up of our law books, and to repeal some of those old outdated laws would also be a very useful job that this Parliament could do.

I’d like to rise, also, on behalf of the Green Party in support of the Secondary Legislation Bill and to start by acknowledging the Attorney-General for the work that he has put into it and that his team has put into it, and also, as has been pointed out, the previous Attorney-General, the Hon Chris Finlayson—I’m not entirely sure what he had to do with this, but it’s always worth acknowledging the Hon Chris Finlayson.

A number of speakers have said tonight that this is a weighty tome of a bill at 300 and something pages. It is, I would like to point out, shorter than the emissions trading reform bill currently in front of the House. But this is actually the second piece of legislation to do with the secondary legislation project and so, thus, between the two bills, I think it probably does make it one of the largest pieces of legislation to come before the House. I think that speaks to—and we’ve made a lot of light of it this evening on both sides of the House—the work that the officials have put in over the course of many, many years to craft a piece of work that, in small ways, does actually make Parliament function better and more transparently than it has in the past, and that can only be commended. I think that it is worth just taking a moment to acknowledge all of those people who have put in a great deal of effort over the years to put together what is actually a complex and technical piece of legislation that does actually make things just a wee bit better in the functioning of our democracy.

The Green Party, of course, supports open and transparent Government—as does this Government—and full public access to information. We also, of course, support the original legislation that creates the requirements that this bill fulfils and that this bill completes. And so, with that, I also commend this bill to the House.

💬 Hon Tim Macindoe: And merry Christmas.

And merry Christmas, Mr Macindoe.

Thank you, Madam Speaker. I’ll keep my contribution short. I was rather touched that the New Zealand First member seems to be obeying the instructions of the National Party when Mr Macindoe didn’t feel the same obligation upon him, but I shall do so none the less, I promise.

Just a really quick note, actually: others have made a lot of good points about the importance and the value of this work. Secondary legislation, as others have pointed out—sometimes known, among other things, as regulations. Regulation literally—the etymology of it is to rule or to put something in a straight line; so it’s, literally, a ruler. Obviously, once upon a time, a king, and I presume that that’s the same root word—regency and rex, and so on. Anyway, those of us who are ruled, which I have to say, hopefully, in democracies are all of us, need to know the rules that govern our conduct to know not only how the law helps us, as the Attorney-General pointed out that the Chief Justice had said, but also the laws that hinder us, and, in any case, to know the rules of the game. That’s the key aspect of equality of opportunity, and I think we can all get on board with that.

With that, I’ll just simply say it will be a happy New Year, given that we have a committee stage of a bill this size to look forward to, and—I’m doing it in reverse order—also merry Christmas.

We have a split call.

Thank you, Madam Speaker. I’m actually really excited to be able to speak to this bill. In the spirit of Christmas, I want to acknowledge the Attorney-General for gifting us this bill this evening, and no doubt its being passed and being handed to the Regulations Review Committee, of which I’m a member.

This is one of those sensible pieces of legislation. It’s long been in the making, spanning right across all of Government to, basically, clear up the position around what is now being called “secondary legislation”. I’ve actually read this bill; it’s 300-odd pages, but it’s actually two pages of operative provisions. So it’s actually a very elegant piece of legislation which takes a whole host of—the guts of it is actually six provisions or five sections, and then the rest of it is just 36 Schedules which actually covers the full suite of provisions across all of the legislation, which are, basically, creating instruments and calling them now “secondary legislation”.

So it’s not that intimidating, but I’m looking forward to playing my part within the Regulations Review Committee in our examination of this bill because it is long overdue, and it’s about providing that openness and clarity and certainty so that citizens out there will know exactly what is secondary legislation across the whole raft of the many, many pieces of legislation that will be amended as a result of this bill.

Not to forget that this bill is actually linked to the Legislation Act of this year, which I believe was passed just a few weeks back. And once all of these Acts are actually in place and can be actually brought together through Orders in Council, the whole system will come together and ensure that this new elegant way of framing all of our empowering instruments under our nice, tidy new category of secondary legislation will be in place. So, with that, I commend it to the House.

Good evening, Madam Speaker. I am very glad to be able to give a quick contribution. The Secondary Legislation Bill is being brought by the Attorney-General, David Parker, and I commend him for doing so. It is a bill that the National Party had introduced as a result of the inquiry by the Regulations Review Committee and the Productivity Commission’s inquiry into the oversight of disallowable instruments which were not legislative instruments. Both the Productivity Commission and the Regulations Review Committee recommended that a single secondary legislation category be established; the object being to make it easier for individuals outside an organisation to be able to find the law that applies to them more quickly and easily. It also provides the Parliament with an easier way to scrutinise law.

I absolutely support the bill, and I also want to say merry Christmas to everyone. It’s my first Christmas in the House, and thank you for having me here. Thank you.

Madam Speaker, thank you. It’s a pleasure to be in the House this evening to take a call on the Secondary Legislation Bill. Can I acknowledge the Hon David Parker, the Attorney-General, for leading this piece of work.

It’s interesting that, when I look at this, I think, “Wow, the breadth of this bill is huge.” It’s amazing, in fact, that it amends over 2,500 provisions and about 550 Acts—I think I read—and I thought, “Wow, that’s amazing work.” I want to thank the Parliamentary Counsel Office for their work and the time that they put in to review all those Acts that empower the making of the documents covered in this bill. This is a technical bill, and I’m going to commend this bill to the House. Kia ora.

It’s a pleasure to rise and give, what I hope is going to be, my last contribution of 2019 to the Secondary Legislation Bill, first reading.

💬 Greg O’Connor: You’re not the only one.

I’m only going to be giving a small, one-minute contribution—

💬 Hon Tim Macindoe: That’s mean.

Ha, ha!—because it is very clear that we are supporting this bill tonight. There are 550 Acts contained within this bill that are amended with this going through. So it’s a really important bill; the nuts and bolts of improving the efficiency and the effectiveness of regulations in this House.

I want to commend the backbone of the Parliamentary Counsel Office and the Office of the Clerk for all the tremendous work that they do. It’s certainly not us as MPs doing this; it’s hard-working staff around here who are actually going through and reviewing all of these Acts and laws and looking for the changes that need to me made.

So the purpose of this bill, we absolutely support. We look forward to a robust discussion in the select committee. So I wish to once again wish you, Madam Speaker, and to my members a happy Christmas.

Hark! The herald angels sing.

All I want for Christmas is you.

Thank you.

Thank you, Madam Speaker. This is actually a really special bill to me, and I don’t say that lightly. Not long after I got into Parliament, I must have subbed on to a select committee that was discussing secondary legislation, and I actually didn’t know a lot about what it was. That prompted a few of us from the “class of ’17” to actually look into what secondary legislation is and how it relates to primary legislation. I have got to say that the lead-up to this bill has taught me heaps, so can I thank the Attorney-General, David Parker, for that, but more importantly for the work that he’s put into it. Ready access to the law is fundamental to a democratic society that is based on openness and the rule of law. As members before me have said, this is a really good bill because it improves clarity of our legislation and accessibility to it, which is incredibly important for us all.

Also, as I conclude my contribution, in the vein of speakers before me, can I just take this opportunity to wish everyone a very merry Christmas. I commend this bill to the House.

Bill read a first time.

Bill referred to the Regulations Review Committee.