When and How to Use These Guidelines
Guidance on legislative standards is a vital thread in the fabric of New Zealand’s policy and legislative development framework. The first edition of these Guidelines was published in 2001 and rewritten in 2014 by the former Legislation Advisory Committee. This edition was published in 2018 by the Legislation Design and Advisory Committee. The Guidelines are endorsed by Cabinet and may be supplemented by LDAC.
A number of the considerations in these Guidelines are also addressed as part of the various existing government requirements relating to the policy and legislative development process. Disclosure statements(external link), Regulatory Impact Assessments(external link), New Zealand Bill of Rights Act 1990 (NZBORA) vets(external link), and compliance with the Cabinet Manual(external link) will all have their own procedures and requirements.
When to use these Guidelines
These Guidelines are designed as a tool to guide thinking by those involved in making legislation and to support transparency about the exercise of law-making power. It is the role of officials to follow good processes and provide clear advice to inform decisions made by Ministers and Parliament to ensure that they are made with knowledge of the principles, the significance of any proposed departure, and the competing interests to be balanced.
These Guidelines will have the greatest impact when considered as a whole at the outset of the policy and legislative development process, but can also be referred to as new issues arise and policy and legislation develops. Producing legislation will involve a number of initial policy decisions, but it will also involve countless decisions that must be taken as the legislation develops. Each decision has the potential to bring further issues to light.
At a minimum, these Guidelines should be explicitly addressed at the following stages:
- If policy decisions are sought—If policy decisions that will/may involve legislation raise design issues or depart from the principles in these Guidelines, these should be clearly explained and the advantages and disadvantages identified and assessed in policy papers to ensure Cabinet decision making is fully informed. It is also good practice to note under “legislative implications” in policy papers whether the proposal is likely to raise any further Guidelines issues during drafting and whether officials have worked or will work with LDAC on the proposals.
- When draft legislation is submitted to the Cabinet Legislation Committee—The final step in designing legislation is to thoroughly check draft legislation as a whole against the principles in the Guidelines once it is close to introduction. This will help to identify any unintentional or unexpected issues that may have crept in during development. Ministers must indicate compliance with these Guidelines in Cabinet papers seeking approval to introduce a bill or to submit regulations to the Executive Council. Papers should explain and justify any departures from the Guidelines, as set out below.
How to use these Guidelines
Each chapter of these Guidelines contains a general introduction to the issue and a series of questions, principles (italicised), and some brief explanatory text. From time to time, LDAC will add to these Guidelines with supplementary material to assist officials to address questions or issues raised in the Guidelines, provide legislative examples to assist officials to make decisions at the margins of issues, and provide guidance on areas not covered by the Guidelines. This supplementary material is linked to in the chapters and set out in full at the end of each chapter.
The checklist(external link) available on the LDAC website sets out the italicised principles from the Guidelines. The checklist should be used iteratively throughout policy and legislative development and will assist officials and their Ministers to indicate compliance, and clearly explain and justify any departures, in Cabinet papers.
LDAC considers that the principles (reflected by the italicised text) should be followed. In some cases, the principles simply call for informed judgement and provide guidance on that. Officials should be able to clearly explain their judgement. In other cases, principles set a default position where the presumption is to meet that principle and only depart from it if there is a clear justification. Officials must include clear explanations and justification in supporting material and in Cabinet papers seeking approval to introduce a bill or to submit regulations to the Executive Council.