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Regulatory Impact Statement:Regulatory Impact Statement: Increasing the Visibility of Legislative Quality Issues

Annex 3: Disclosure of Information to Support the Scrutiny of Legislation (included in all 3 Packages)

The core of Option 5 is the proposal that information that might help in assessing the quality of a piece of government legislation should be made readily available to interested external parties at the time a Bill or substantive SOP is introduced, or delegated legislation is enacted.

This annex briefly explains the core features of the proposed disclosure mechanism. The selection of matters to be disclosed is discussed and explained in Annex 4 and 5.

Core Proposed Features of the Disclosure Mechanism
Form of Disclosure

A standalone disclosure statement, distinct from any explanatory note and the legislative instrument itself (though explanatory note may include a link)

The original proposal was that the information be provided as part of the explanatory note.  There are several reasons for suggesting a change:

  • the Clerk of the House does not support this option (viewing explanatory notes for Bills as creatures of Standing Orders)
  • current explanatory notes for delegated legislation remain attached to the instrument, and exist to assist ordinary users to understand what the legislation requires of them rather than to assist with scrutiny
  • a separate statement (if it is just as accessible as the legislation itself and includes the general policy statement) would provide a clear separation between the material for which the drafter is responsible, and the material for which the department is responsible.
Types of Legislation Covered

All Government Bills, excluding Imprest Supply and Appropriation Bills, Revision Bills, Subordinate Legislation (Confirmation and Validation) Bills, Statutes Amendment Bills, Treaty Settlement Bills that do not amend or affect existing regulatory arrangements, or Bills that provide solely for the repeal of Acts identified as spent. 

All SOPs in the name of a Minister relating to a covered Government Bill

All delegated legislation that is disallowable by the House and drafted by PCO or IRD drafters (in accordance with the new Legislation Act 2012).

Types of Information Disclosed

For Bills

  • A general policy statement (moved out of the explanatory note)
  • Information about the quality assurance processes, products and outcomes associated with producing the legislation
  • Information about particular features or key impacts of the legislation itself that might indicate that careful scrutiny is warranted

For Delegated Legislation

  • A general policy statement
  • Information about the quality assurance processes, products and outcomes associated with producing the legislation
Responsibility for Content

The administering department or agency will be formally responsible for the content.  Where explanations for particular policy choices are sought, however, information from the responsible Minister may be required.

The administering department is preferred over other candidates because it is likely to have the best understanding of the legislation and its development while also, consistent with state sector values, being sensitive to having a legal duty to provide complete and accurate disclosures.

Other Responsibilities

PCO and Treasury will share responsibility for the production of appropriate guidance, while PCO will have the main responsibility for determining production requirements and the format for disclosures (including providing any templates).  PCO may also be able to provide advice on the accuracy of the department's proposed disclosures relating to the features of, or powers conferred by, a piece of legislation.

PCO involvement ensures the disclosure statement is able to be tabled and published on the NZ legislation website at the same time as the legislation itself.  As legislative drafters, PCO drafters are also well-qualified to provide departments with consistent advice about meeting the disclosure requirements.

Delivery of Disclosure

A copy of the proposed disclosure statement would be provided to LEG at the time LEG approval is sought for the relevant Bill or instrument

The statement would be tabled in the House and placed on the Legislation website alongside and at the same time as the relevant instrument

Relevant select committee members, and other MPs on request, would receive a copy of the statement along with a copy of the legislation.

Source of Obligation

The obligation to produce and table the statement would be set out in an Act, along with a core set of mandatory disclosures.  Additional disclosures may be specified as administrative requirements.

Legislation gives a disclosure requirement more credibility and greater status and profile, but where there is some uncertainty about how a disclosure might work in practice, it is better that it is tested or trialled administratively before enshrining it in legislation  

Sanctions and Enforcement

The Act would not provide for any legal sanctions for a failure to meet the disclosure obligations.  It should also explicitly provide that any failure to comply with the disclosure obligations will not affect the validity of a particular piece of legislation.

It is not our intention that the courts be given a role in enforcing the obligation.  The House has its own ways to respond to any failure to meet its expectations for the provision of information.  Moreover, the intention of the disclosure is to support better scrutiny of legislative quality, and not to create a new way to invalidate legislation. 

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