Guidelines on Process & Content of Legislation

INTRODUCTION

Role of legislation

1. Legal rules are essential to the functioning of our society. Increasingly they are found in legislation. They cover a broad range of subject areas and activities. They include rules:

2. This body of rules imposes restraints on individuals and groups within society and regulates the way they exercise various freedoms. But at the same time it both confers and protects important rights, liberties and benefits. As a system it works only if the great majority of society and all major sections within it see it as supporting and protecting their interests.
3. The balances in society are constantly changing and the legal rules, therefore, are in need of constant review and adjustment. At any time the bulk of the law will remain constant. But the Government of the day must assume responsibility for assessing changes in the political, economic and social environment and for determining whether adjustments to the law are needed in response to those changes. Where such adjustments are proposed, they will be unlikely to gain broad acceptance unless they have been developed through an adequate process, including appropriate consultation. There are also important legal principles relating to fairness and the preservation of individual liberty that need to be complied with if the legislation is to prove acceptable. In addition to being acceptable, new legislation must also be effective. This means it must be technically sound and fit into the general fabric of the existing law. It should also be accessible and understandable.

Application of Guidelines

4. These Guidelines set out some of the more important matters relating to both process and content that need to be considered in the promotion of legislative change, whether it is to be effected by statute or by regulation, rules, orders, notices or other subordinate legislation.
5. It is intended that the Guidelines will be periodically reviewed to enhance their usefulness to those who prepare legislation. Suggestions for additions or amendments are welcomed at any time by the Legislation Advisory Committee.
6. What can be done to ensure that the Guidelines are applied? There are two answers to that question, one more general, the other specific. The general answer looks to the overall process for the preparation and enactment of legislation. Those who have a hand in the preparation of legislation - within departments, other government bodies and the Parliamentary Counsel Office - have a major responsibility for giving effect to the Guidelines. No doubt some of those who make submissions on Bills will also call attention to instances where they consider the Guidelines have not been followed. It is equally for the relevant select committee and for Parliament itself to consider the application of the Guidelines. Ignoring the Guidelines may mean poor legislation and often result in political and administrative embarrassment.
7. The specific answer looks to those who have the principal responsibility for legislation - its content and form and the method of its preparation. The responsibility is ultimately with Ministers. But they look to their departmental officials to satisfy them that the Guidelines have been applied or, when they have not been, that they have at least been carefully considered and departed from only for good reason which is clearly stated.
8. The Guidelines include a checklist of the matters addressed by the Guidelines to assist officials who have primary responsibility for a new piece of legislation (whether a statute, regulations, rules, order, notice or other subordinate legislation).

Other LAC publications

9. A list of other publications of the Legislation Advisory Committee is set out at the end of these Guidelines. Many of these publications will also be of assistance in the preparation of legislation.

Acknowledgements

10. The Legislation Advisory Committee wishes to acknowledge and thank its predecessor committees for the excellence of the previous editions of the Guidelines, on which this edition is substantially based. Members of the Committee themselves prepared most chapters of this edition, with the remaining chapters being prepared by Alison Lewes (Ministry of Justice, Secretary of the Committee), Fiona Leonard, Bill Moore, and Mark Gobbi of the Parliamentary Counsel Office, Phillippa Smith of the State Services Commission, and the Bill of Rights section of the Ministry of Justice. The Committee thanks all of these contributors for their excellent work, and also thanks Guy Beatson, Ross Carter, Denese Henare, Sir Kenneth Keith, Rebecca Kitteridge, Ivan Kwok, Peter Mumford, Robin Oliver, Roger Palairet, Sir Geoffrey Palmer, David Pickens, Marie Shroff, Hilary Talbot, and Nicola White who reviewed a draft of the Guidelines and provided valuable comments.