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• Drafting Subordinate Legislation
• General Comments
• Drafting Empowering Provisions In The Act
• Regulations
• Other Instruments
• Drafting Subordinate Legislation
• Other Instruments
• The Standard Components Of Regulations
• Title And Commencement
• Purpose Clauses
• Penal Provisions

Appendix A

Drafting Subordinate Legislation

GENERAL COMMENTS

A1 Subordinate legislation includes regulations and instruments such as codes, rules, guidelines, rulings, and determinations. Regulations and other instruments belong to a single continuum of subordinate legislation. The choice of instrument may have significant drafting implications, but the variations make generalisation difficult.

A2 Many, but not all, of the differences between regulations and other instruments seem to be a matter of practice and expectation rather than essential attributes of the instrument concerned. Differences may diminish in the future: for instance, regulations might be drafted in less formal language. But it is convenient, at least for current purposes, to draw a line between the two main categories: regulations and "other" subordinate instruments.

A3 The drafter must have a clear picture of the intended scope and purpose of the subordinate legislation before drafting the provision or provisions in the Bill which empower the making of subordinate legislation. Proposals to give effect to the detail of the legislative scheme by legislative instruments other than regulations should be based on a clear understanding of the comparative advantages of those forms over the more usual regulations.

A4 The empowering provision for the instrument should ensure that the precise limits of the lawmaking power conferred by Parliament are set down as clearly as possible in the empowering Act. A single provision should authorise the making of only one kind of subordinate instrument. If more than one kind of instrument is required under the statute, provide for this in separate empowering provisions.

A5 Drafters, policy-makers and members of the legislature are familiar with regulations as the main form of subordinate legislation, and there are well-accepted conventions regarding their structure, style, content, and the process for making them.

A6 Conventions relating to "other" instruments are less well-established, for two reasons. First, there is a great variety of forms. Secondly, some of them, particularly "rules", have become more prominent over the last five years and are still evolving. Given that practice is not settled in this area, and is likely to change further, it is not possible to offer more than options for drafters to consider when drafting empowering provisions or preparing subordinate legislation of this kind.

DRAFTING EMPOWERING PROVISIONS IN THE ACT

Regulations

A7 In 1961 the Government directed that a particular form of empowering clause be used in Bills, and that all empowering provisions should be consistent with it. The 1961 formula removed earlier subjective and general wording. This ensured that Parliament stated the limits on the law-making power as precisely as possible, and that the power remained subordinate and subject to control by the courts. Following this reasoning the recommended formulation is:

The Governor-General in Council may make regulations . . .

A8 The clause sets out in lettered paragraph form the specific authorisations, and then adds the following standard general paragraph:

providing for such other matters as are contemplated by or necessary for giving full effect to this Act and for its proper administration.

Interpret the apparent breadth of these general words with caution. They will be construed by the courts in their context and with regard to the purposes of the Act in which they appear. They will cover matters that are incidental or ancillary to what is enacted in the statute itself, but will not support a widening of or a departure from the scheme of the Act.

A9 There is no general formal legal requirement of notice or consultation in New Zealand before subordinate legislation is made. Any specific requirements about notice and consultation before the making or commencement of delegated legislation must be included in the empowering provision.

A10 Arrange the paragraphs of an empowering provision in logical sequence, and ensure that the words of each paragraph flow grammatically from the introductory formulation. In a complex Act, it is likely that, in addition to the general provision empowering the making of regulations, there will be specific references to matters being prescribed. Examples:

. . . prescribing the procedure for applications under this Act;
. . . prescribing minimum standards for continued registration as a veterinarian;
. . . prescribing the requirements for accreditation;
. . . prescribing conditions on which or subject to which special voters may vote.

Prescribed is defined in s 19 of the draft Interpretation Act as follows:

prescribed means prescribed by or under the enactment.

A11 It may be helpful to include a note listing the various sections under which regulations can be made or which contemplate the making of regulations. This should appear at the foot of the general empowering provision.

Other instruments

A12 Instruments vary considerably with regard to

• their role in enabling the policy objectives of the legislative scheme to be implemented,
• their intended legal effect,
• the relationship between the instrument and regulation-making powers, and
• the relationship between the instrument and the enforcement provisions of the Act.

A13 Some instruments elaborate on or operate with a small part of the particular Act; for example, the codes of practice under s 33 of the Ozone Layer Protection Act 1990 and codes of standards under ss 21_22 of the Broadcasting Act 1989.

A14 Examples of empowering provisions which authorise instruments detailing the legislative scheme more generally are ss 28_30 of the Civil Aviation Act 1990, which allow the Minister to make rules, and s 46 of the Privacy Act 1993, which allows the Privacy Commissioner to issue codes of practice.

A15 Policy decisions on the function of the statutory instrument, its legal effect and evidential weight in relation to offences must be settled before the empowering provisions can be drafted. Of particular importance in clarifying the role of the instrument in relation to the overall statutory scheme are issues relating to legal effect and enforcement.

Legal effect

A16 The status of the instrument within the legislative scheme depends on the particular context. For example, the instrument may state a directly binding obligation (as do the Civil Aviation rules) or it may indicate a mode of compliance with obligations stated elsewhere (eg, documents approved by the Building Industry Authority under the Building Act 1991 for use in establishing compliance with the Building Code). This Manual is concerned with instruments which play an explicit role within the legislative scheme. There are other publications, intended to educate, for instance, which may have some weight because they are issued by government; but these are not discussed here.

A17 Although in principle there may be a considerable number of possibilities for specifying legal effect, in practice two options are common.

A18 First, the Act may require a court to "have regard to" the instrument when considering an alleged breach of the Act (or a regulation), as in s 20(9) of the Health and Safety in Employment Act 1992:

A Court, in determining whether or not a person charged with failing to comply with a provision of this Act has complied with that provision, may have regard to an approved code of practice that
(a) was in force at the time of the alleged failure; and
(b) in the form in which it was then in force, related to matters of a kind to which the provision relates.

In this case the instrument is linked to obligations under the Act. Compliance with the instrument can be evidence of compliance with the Act.

A19 Secondly, the Act may provide that regulations may be promulgated to give the instrument a specified legal effect. Here there are two main sub-options:

• The regulation may make breach of the instrument an offence giving rise to a sanction such as a fine, as under the Civil Aviation Act 1990 ss 28(6) and 100(1)(b) and (c):

No breach of an ordinary rule constitutes an offence unless that offence is prescribed in regulations made under this Act.
[The Governor-General in Council may make regulations,]
(b) prescribing those breaches of rules made under this Act that constitute offences,
(c) prescribing those breaches of rules made under this Act that constitute infringement offences,
. . .

• The regulation may provide that proof of compliance with the instrument is deemed to be compliance with an obligation specified elsewhere, in either the Act or a regulation, as in s 54(2) of the Gas Act 1992:

Regulations made under paragraphs (b) to (m) of subsection (1) may
(a) require compliance with the whole or a part of a gas code of practice;
(b) provide that proof of compliance with
(i) a gas code of practice, or a part of such a code, or
(ii) an approved code of practice in force under section 20 of the Health and Safety in Employment Act 1992, or a part of such an approved code of practice,
is proof of compliance with the provisions specified in the regulations.

A20 The critical point in each case is to make the intended connection between the instrument and the regulations and the Act explicit. Cross-references to regulation-making powers may be helpful in doing this.

Enforcement

A21 Enforcement of the instrument itself is obviously dependent on provisions as to its legal effect. Consider how the instrument and the enforcement of the Act as a whole should interrelate. Ask the following questions:

• Is it envisaged that the instrument will be made binding by a regulation? If so, does the Act create offences and state penalties or authorise regulations that do so?
• If an enforcement regime specific to the Act is to be established, what part will the instrument play in relation to it? (See the Takeovers Act 1993 and the Privacy Act 1993 for examples of enforcement regimes specific to the statute, ultimately backed up by the ordinary courts.)

Again, cross-references to offences, penalty and enforcement provisions may be helpful.

The content of empowering provisions

A22 The more important the instrument is in relation to the statutory scheme to which it belongs, the more prominence should be given to the provisions of the Act authorising the instrument. Procedural safeguards and the accessibility of the instruments to those affected need to be carefully considered. There are likely to be advantages to clearly stating the policy on these matters in the empowering Act.

A23 All provisions empowering the making of instruments should specify the following:

• who may recommend or issue the instrument;
• if the instrument must be approved, who may approve it (when the "approver" differs from the "issuer");
• what should or may be covered in the content of the instrument;
• the legal effect and the way the instrument relates to the enforcement provisions of the Act.

A24 With all instruments which are intended to play a significant role in the implementation of the objectives of the Act, consider the following:

• the process for developing the instrument, an example being consultation requirements;
• whether there should be provision for urgent development and approval of instruments;
• whether the instrument should be regarded as a regulation for the purposes of the Regulations (Disallowance) Act 1989, which means that the instrument must be laid before the House of Representatives and may be disallowed, amended or substituted by a resolution of the House;
• whether the instrument should be regarded as a regulation for the purposes of the Acts and Regulations Publication Act 1989, which means that the instrument must be published in the annual series of regulations;
• the means of notification (eg, in the Gazette) and publication of the instrument;
• the incorporation of material originating from other organisations, and the consequences for the instrument of subsequent amendments to the incorporated material (how will updates of incorporated material become part of the instrument? how will the instrument accommodate later editions of manuals or reference works it refers to?);
• in what way, if at all, the administering body should be able to exempt organisations or individuals from their obligations to comply with provisions in the instruments;
• the need for proof of the existence and content of the instrument for the purposes of evidence; and
• the need for provisions specifying when the instrument comes into effect.

DRAFTING SUBORDINATE LEGISLATION

A25 Although subordinate legislation is less important than primary legislation and often procedural in character, drafting it requires the same skill and care as that taken in drafting Bills.

A26 Any legislative instrument must always be drafted within certain constraints. These arise in the main from having to fit the proposed new law into the larger framework of existing statute law and the legal system in general. The drafter of subordinate legislation faces additional constraints because of the relationship between the subordinate legislation and the empowering Act. For this reason, subordinate legislation can be more difficult to draft than primary legislation.

A27 In general, the recommendations made in this Manual about style, language, drafting techniques, order of arrangement, division of the material, headings, paragraphing techniques, numbering and lettering, and schedules apply to drafting regulations as well as to drafting Bills. Some recommendations apply also to the drafting of instruments other than regulations. The following paragraphs refer to those few issues applicable particularly to drafting subordinate legislation.

A28 The failure of the drafter to acquire a sufficiently thorough knowledge and understanding of the empowering Act causes most of the problems associated with subordinate legislation. Invalidity can result in particular

• from a failure to comply with the terms or conditions of the empowering provisions in the Act; or
• because the subordinate legislation is ultra vires; that is, beyond the power conferred by the empowering Act; or
• because the provisions of the subordinate legislation are inconsistent with a provision of the empowering Act or with other existing Acts.

Failure to comply with the empowering provisions

A29 Any particular conditions applicable to the enactment are usually contained in the empowering section. The proper performance of the legislative prerequisites or requirements is not primarily a matter for the drafter. However, the drafter should draw any unusual requirements to the attention of the instructing officials:

• There may be timing considerations: generally, the law containing the power must be in force when the power is exercised, although this rule is ameliorated by s 5 of the draft
• Interpretation Act (which provides for anticipatory exercise of powers). Note that retrospective subordinate legislation must be expressly authorised and is generally undesirable: see paras
• 64_66.
• The power must be exercised by the person or body on whom
• it is conferred: in the absence of express legislative provision
• (and this is unusual), a power to make regulations cannot be subdelegated.
• There may be a statutory requirement that some person or body be consulted before the exercise of the power.
• The empowering provision may provide for the subordinate legislation to be made only on the recommendation of a specified Minister or other person or body.
• There may be a statutory requirement for approval, or confirmation of, or consent to making the instrument.

The empowering Act may state the consequences of the failure to comply with some of these requirements.

Ultra vires subordinate legislation

A30 It is a drafter's duty to consider whether the substance of the instructions falls within the limits of the delegated power. If it appears that the proposals are or may be ultra vires, or the drafter has doubts about the matter, the instructing officials should be advised.

A31 The empowering provision should be interpreted in a practical and balanced fashion, and with particular regard to the expressed or implied purposes of the principal Act in accordance with s 9(1) of the draft Interpretation Act. This provides:

The meaning of an enactment is to be ascertained from its text in the light of its purpose and in its context.

A32 Subordinate legislation that is ultra vires is generally drafted too widely. Occasionally, however, subordinate legislation may be unduly narrow when read in the context of the legislative scheme. For instance, if the regulations are required to substantially implement an objective stated in the Act, they ought not to narrow that objective.

Inconsistency with principal legislation and other existing statute law

A33 Knowledge and understanding of the whole of the empowering Act are required. The drafter cannot rely on a sound knowledge of the empowering provision but only a vague perception of the remainder. In drafting subordinate legislation, the drafter is trying to create an integrated whole comprising the Act and one or more pieces of subordinate legislation. This has two aspects:

• the structure of the subordinate legislation must be complementary to and compatible with that of the primary legislation; and
• the language used in the subordinate legislation must be consistent and in harmony with that used in the primary legislation.

A34 The drafter must also consider the relationship between the regulation or other instrument and other legislation. Statutes such as the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and the Human Rights Act 1993, which apply across all spheres of activity, are particularly important. But the relationship between the delegated legislation and other legislation relating to the same area is also relevant.

Regulationsmpatibility of structure

A35 Often regulations will deal in detail with only one matter contained in the principal Act. However, the structure adopted in the principal Act should be reflected in the subordinate legislation so far as is practicable. If appropriate, use the same division into parts and the same headings. Deal with topics in the same order in the subordinate legislation as in the principal Act. If there are multiple sets of regulations under the Act—in the case of the Fisheries Act 1983, for instance—it is useful for there to be a consistent and logical ordering that applies across all regulations on the same general matter.

Consistency of language

A36 Consistency is not only a matter of facilitating communication and the maintenance of professional standards: a court may interpret a change of language as indicating a change of intended meaning. A word used in an enactment made under the authority of an Act has the same meaning as it has in that Act: see s 21 of the draft Interpretation Act. This may be so whether or not the word is defined in the principal Act. It is essential for policy-makers and drafters to have a strong grasp of the terms used in the Act and of their interconnections.

A37 Variation in subordinate legislation from the words used in the principal legislation is likely not to be deliberate but a result of insufficient familiarity with the words of the principal Act. This problem occurs also in drafting amending legislation: see paras B7_B9.

A38 In subordinate legislation, it is not necessary to repeat definitions contained in the principal Act. It is undesirable, but may on occasion be unavoidable, to define a word differently in subordinate legislation from the principal Act.

A39 It is important to consider consistency of the language used in the legislation (Act, regulations and other instruments) and language used in material that can be incorporated by reference, such as the text of an international agreement. Differences in definitions used and the style of the incorporated material (eg, the fact that it is addressed to signatory states rather than individuals) may make incorporation by reference impractical.

Other instruments

A40 The variety of instruments other than regulations means that it is difficult to generalise about drafting them. However, some very broad suggestions can be made:

• Each instrument should briefly set out its relationship with the principal Act (or regulation); that is, it should include a reference to the provisions under which it is made.
• The legal effect of the instrument should be specified (eg, in the approved codes under the Health and Safety in Employment Act 1992).
• The process undergone in developing the instrument should be recited and a notice of issue or approval by the relevant Minister or Chief Executive included.

A41 Consider all the following matters in determining how the instrument should be drafted:

• the function of the instrument (ie, the role of the instrument in the overall legislative scheme);
• its intended legal effect (is adherence to the instrument compulsory or merely one of several ways of complying with the Act?);
• the most likely users of the instrument;
• the nature of the information to be conveyed; and
• attitudes and social values to be conveyed by the instrument.

A42 To avoid confusion, words used in an Act should be used in the same sense in legislative instruments made under that Act. If extra information and explanation is published with the instrument itself, it should be clearly distinguished from the operative part of the instrument.

THE STANDARD COMPONENTS OF REGULATIONS

Title and commencement

A43 The titles of regulations facilitate reference

• in the course of advice and administrative use,
• in court, and
• if and when the instrument is to be amended or revoked.

A44 Treat titles of regulations in the same way as titles of Acts: see paras 29_34. As with Acts, the title of the regulations should be part of the enacting statement:

Under sections 134 and 135 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, the Governor-General in Council makes the Mental Health (Medical Fees) Regulations 1992.

A45 The enacting statement should indicate the statute and section under which the regulations have been made. It should also state compliance with any procedural requirements: see para A29. Example:

Under section 82 of the Toxic Substances Act 1979, and, in the case of Part 1 of the regulations, under section 7 of that Act, the Governor-General in Council, acting on the advice of the Minister of Health tendered on the recommendation of the Toxic Substances Board, makes the following regulations.

A46 The commencement provision in regulations should be separate from the enactment and title provision. The commencement of enactments (which by definition, in s 19 of the draft Interpretation Act, includes regulations, rules and bylaws) is provided for in s 4 of the draft Interpretation Act, subs (1) of which states that, in the absence of contrary provisions, enactments come into force 28 days after the day on which they are assented to or made. Retrospective operation can be provided for only to the extent that the empowering Act authorises and is to be avoided if possible: see paras 64_66.

Titles of amending regulations

A47 Titles of amending regulations should conclude with the year in which the amendment is made, rather than with reference to a number indicating how often the instrument has been amended since it was created. Thus

Dangerous Goods (Licensing Fees) Amendment Regulations 1981
Dangerous Goods (Licensing Fees) Amendment Regulations 1983

not angerous Goods (Licensing Fees) Regulations 1983, Amendment No 2.

A48 If regulations are amended more than once in the same year, the title should include a number to distinguish the amendments:

Fisheries (Auckland and Kermadec Areas Amateur Fishing) Amendment Regulations 1992
Fisheries (Auckland and Kermadec Areas Amateur Fishing) Amendment Regulations (No 2) 1992

A49 An amending regulation should include a separate provision declaring that the instrument to be amended is to be referred to as the principal regulations. It is not necessary to declare that amending regulations are to be read together with and deemed part of the principal regulations. That is provided for by s 11 of the draft Interpretation Act—an amending enactment is to be read as part of the enactment which it amends: see para 108.

Purpose clauses

A50 A purpose clause is rarely needed in subordinate legislation. The purpose of subordinate legislation will generally be that of the principal legislation or some aspect of it. To express a purpose differently from that in the principal legislation might invite an argument that the subordinate legislation is ultra vires.

Penal provisions

A51 Include penal provisions in subordinate legislation only to the extent authorised by the empowering legislation. If an empowering provision authorises the creation of offences and penalties by regulation, it should state the matters that can be the subject of criminal liability and the maximum penalty that may be prescribed. This means that Parliament has endorsed the scope of such regulations.

A52 It is important to draft penal provisions in subordinate legislation in the wider context of the criminal law. But access to the criminal law is widened by placing penal provisions in principal Acts, rather than in regulations.