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Powers to make delegated legislation

The delegation of Parliament's legislative power is a very significant decision for Parliament to make, and the scrutiny of these powers in Bills is arguably the most important function performed by the Regulations Review Committee. If Parliament is to remain sovereign, it will want to confine such powers to matters of detail, implementation or matters that are minor, and avoid matters of substantive policy or principle.

Question 4.7 - Henry VIII Clauses

4.7.  Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation? [YES/NO]

What matters are covered by the question?

Delegated legislation is broadly defined and will include regulations as well as various other types of delegated instrument. For the purposes of Question 4.7 delegated legislation means “disallowable instrument” as defined in s 38 of the Legislation Act 2012[55] and this includes:

  • a legislative instrument (further defined in s 4 of the Legislation Act 2012 and includes an Order in Council and an instrument required by an Act to be published under the Legislation Act 2012);
  • an instrument that has a significant legislative effect (further defined in section 39 of the Legislation Act 2012 as an instrument whose effect is to create, alter or remove rights or obligations, and determine or alter the content of the law applying to the public or a class of the public).

The meaning of delegated legislation in Question 4.7 also includes instruments declared not to be a disallowable instrument. Therefore, instruments that fall within the definition of disallowable instrument (above) are covered by this disclosure question notwithstanding the instrument is declared not to be a disallowable instrument.

Question 4.7 requires disclosure of Henry VIII clauses, which are empowering provisions that will enable delegated legislation to expressly or impliedly:

  • amend, suspend or override an Act (including the empowering Act);[56]
  • define or amend a term in an Act;
  • exempt a person from the provisions of an Act or regulation.

What is the nature of the further information sought?

If the answer is YES, please:

  • identify the provision(s) that create or amend a Henry VIII clause;
  • describe the nature and extent of the Henry VIII clause in terms of the type of delegated legislation that could be made pursuant to the Henry VIII clause and the extent to which that delegated legislation will amend, suspend or override some aspect of an Act;
  • explain why the Henry VIII clause is necessary; and
  • explain the nature of any safeguards that will apply to the Henry VIII clause to ensure it is properly constrained and used appropriately.

Explain why the Henry VIII clause is necessary

Henry VIII clauses are generally difficult to justify as they enable the Executive to change laws Parliament has made, thereby undermining the notion that Parliament is sovereign.

However, there are some very limited circumstances where Parliament has accepted that Henry VIII clauses may be not unacceptable as long as they are also accompanied by appropriate safeguards (see below). Those situations include transitional provisions for a complex reform involving the amalgamation of a large number of statutes, and emergency response measures.

Some examples of the types of safeguards that should apply to a Henry VIII clause

Delegation legislation should be accompanied by certain safeguards and any departure from these should be able to be fully justified:

  • the empowering clause should be drafted in the most specific and limited terms possible and must at all times be consistent with and support the provisions of the empowering Act;
  • where the empowering clause concerns transitional regulations it should generally be subject to a sunset clause;
  • delegated legislation made pursuant to a Henry VIII clause should generally be limited in time, subject to a sunset clause, and subject to confirmation by Parliament; and
  • require consultation prior to making the delegated legislation (unless impracticable, e.g., emergency measures).
If the answer is NO, no further information is required.

Question 4.8 - Powers to make Delegated Legislation

4.8.  Does this Bill create or amend any other powers to make delegated legislation? [YES/NO]

What matters are covered by the question?

For the definition of “delegated legislation” see Question 4.7 above. This question requires disclosure of any empowering clause that enables the making of delegated legislation. Most stand-alone Acts will contain at least one empowering clause for the making of delegated legislation.

What is the nature of the further information sought?

If the answer is YES, please:

  • identify the provision(s) that create or amend the ability to make delegated legislation;
  • describe the nature and extent of the empowering clause and the types of delegated legislation that could be made pursuant to the empowering clause (this should cover the regulations that will be required to implement the Act, the regulations that are proposed to be made in the foreseeable future, and the other matters for which regulations will be able to be made but which are not currently planned);
  • explain why the delegated legislation making power is necessary;
  • explain the nature of any safeguards that will apply to power to make delegated legislation to ensure it is properly constrained and used appropriately.

Why is the power necessary?

There are a range of matters for which it is generally accepted it is appropriate to make regulations. It will obviously be easier to justify the need for regulations in these areas and a brief reference to the nature and scope of the regulations that could be made in these areas will be sufficient to answer this question. Matters generally accepted as suitable for regulations[57] include:

  • matters of detail for which it is not appropriate to utilise Parliamentary time, for example, matters of implementation, details of procedures, fees, forms, lists and technical matters;
  • unforeseen matters that may be required to implement and administer an Act;
  • flexibility in how the Act is applied and matters that may need to be frequently changed; or
  • emergency measures or actions requiring an immediate response, for example, epidemic responses, biosecurity responses, civil defence matters.

Matters that fall outside the above areas will be more difficult to justify and responses should set out in some detail why the matters need to be dealt with by regulation. There are some matters that should generally only be included in Acts and not in delegated legislation and delegated legislation in these areas will be particularly difficult to justify. Full reasons should be provided in support of any empowering provision that could make delegated legislation concerning the following matters:

  • matters of significant policy, including the creation of new agencies or offices;
  • matters affecting fundamental human rights and freedoms, including provisions that alter common law rights;
  • serious offences, significant penalties (generally those involving imprisonment), changes to the jurisdiction of a court or tribunal, civil or criminal rights of appeal, or provisions affecting the right to judicial review; and
  • retrospective provisions.

Some examples of the safeguards that should apply to the making of delegated legislation

There are a number of safeguards that are commonly expected to apply to delegated legislation and these are:

  • procedural safeguards that apply to the making of delegation legislation - where delegated legislation is made by Order in Council it is subject to Cabinet scrutiny, drafting by Parliamentary Counsel, and an expectation that the regulations will not come into force until at least 28 days after their making;[58]
  • disallowance, which provides Parliament with the important opportunity to scrutinise and question the provisions of disallowable instruments. Disallowance is currently provided for under subpart 1 of Part 2 of the Legislation Act 2012;
  • publication requirements in the Legislation Act 2012 ensure that delegated legislation is accessible. For delegated legislation not subject to the publication requirements the agency responsible for the delegated legislation should ensure it is widely available and ideally available on the internet;
  • review by the Regulations Review Committee under Standing Order 314, which provides an effective safeguard on the types of matters addressed in delegated legislation as it provides for the review of delegated legislation against a list of standards set out in Standing Order 315 in response to a complaint, on referral from another Committee, or on the Committee's own motion. The Committee may draw a matter to the attention of the House where it considers the delegated legislation is inconsistent with any of the standards in Standing Order 315;
  • consultation requirements, which provide an important safeguard on the making of regulations as they ensure the delegated legislation is prepared after considering the views of the persons who will be subject to the delegated legislation;
  • confirmation by the House. This safeguard is often used for delegated legislation that contains Henry VIII clauses that allows the delegated legislation to amend, suspend or override provisions in Acts.

Example: (for a YES answer, concerning the Natural Health Products Bill 2011)

Clause 47 provides for various regulations to be made by the Governor-General by Order in Council on the recommendation of the Minister of Health.  The regulations contemplated by the Bill are further referred to in clauses 10, 13, 22, 24, 25, 27, 29, 40, 41, 42, and 46.

The regulations will provide for the matters of detail necessary to support the implementation and operation of the Act.  The regulations required in order to implement the Act include regulations prescribing the manner of, and information required for, a product notification, the evidence required to support a health benefit claim, the manner of notification of new ingredients for a natural health product or a licence to manufacture natural health products, the requirements for labelling natural health products, and the manner and time for appeals against a decision of the Authority.

Further regulations may be made concerning the requirements for applications, the criteria for assessing new ingredients, the procedures of the natural health products advisory committee, and the requirements for a code of practice, the manufacture of natural health products and the natural health products database.

The Minister is required to consult interested persons before recommending the making of regulations.  Regulations will be drafted by Parliamentary Counsel, subject to Cabinet scrutiny, and not come into force until at least 28 days after their making.  Regulations will be subject to the Acts and Regulations Publication Act 1989, disallowance under the Regulations Disallowance Act 1989, and subject to review by the Regulations Review Committee under Standing Order 314.

If the answer is NO, no further information is required.

Further sources:

  • Legislation Advisory Committee, Guidelines on Process and Content of Legislation, Chapter 10 “Delegated Legislation” available at: http://www2.justice.govt.nz/lac/

Notes

  • [55]These provisions relating to disallowable instruments in Part 3 of the Legislation Act 2012 are not yet in force but are used here for the purposes of defining the scope of the term “delegated legislation” to which this question applies. Part 3 will come into force on the earlier of the date appointed by the Governor-General by Order in Council or 1 July 2014.
  • [56]See, for example, section 6(4) of the Canterbury Earthquake Response and Recovery Act 2010, which provided “an Order in Council made under subsection (1) may grant an exemption from, or modify, or extend any provision of any enactment, including (but not limited to) …” and then listed 22 Acts to which the provision applied.
  • [57]These matters were initially identified in a 1932 United Kingdom report on delegated legislation, Report of the Committee on Minister's Powers (1932), Cmnd 4060, and subsequently approved in a 1962 New Zealand report, Report of the Committee on Delegated Legislation, AJHR, 1962, I.18.
  • [58]Cabinet Office Manual, paragraphs [7.84-7.94].
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