Improving Access to Legislation (NZ0010)

• New Zealand Commits to Publishing Secondary Legislation Online (August 1, 2020)

Improving access to legislation We will improve access to legislation by ensuring there is a single source for this information online. Objective: To improve access to legislation by publishing all subordinate instruments (regardless of who drafts them) on the New Zealand Legislation (NZL) website. The result will be a single, comprehensive, official, public source of all New Zealand’s legislation. Status quo: There is no single place where people can see all of New Zealand’s legislation. All Acts of Parliament are published in full on the NZL website. Subordinate instruments (often referred to as regulations) are made under the delegated law-making authority of Parliament. Those that are drafted by the Parliamentary Counsel Office (PCO) are called legislative instruments and are also published in full on the NZL website. Those that are drafted by government departments and agencies, and by other non-governmental bodies, are published either in the Gazette or on a variety of different websites, in newspapers or are not readily available to the public. This has a direct impact on the cost of doing business in New Zealand, people’s ability to comply with the law, and people’s rights. Ambition: We are committed to improving access to legislation – access to the law is central to the rule of law, and people expect easy access to legislation.

✪ 6. Improving access to legislation

Milestones:

Consultation and engagement with all involved actors, including all government and regulatory agencies and Crown entities that produce legislation or regulation

Consideration for approval by Cabinet.

Responsible institution: Parliamentary Counsel Office (PCO)

Supporting institution(s): More than 100 agencies who have delegated power to make secondary legislation

Start date: October 2016

End date: June 2018

Context and Objectives

Legislation.govt.nz provides free public online access in open machine-readable formats to up-to-date versions of New Zealand Acts, Bills (proposed Acts), and Legislative Instruments drafted by the Parliamentary Counsel Office (PCO). This legislation scored 95% for openness and dataset quality in the Global Open Data Barometer 2016 survey.^{[Note161: ‘Country Detail: New Zealand,’ Open Data Barometer, 2016, opendatabarometer.org/4thedition/detail-country/?_year=2016&indicator=ODB&detail=NZL. ]} Under the PCO’s continuing programme to improve access to legislation in New Zealand, the Access to Secondary Legislation Project^{[Note162: ‘Access to Secondary Legislation Project news,’ Parliamentary Counsel Office, December 2017, http://www.pco.govt.nz/access-project-news/#20june2017.]} (originally called the Access to Subordinate Instruments Project) seeks to broaden the coverage of New Zealand’s legislation website. It is adding secondary legislation made under the delegated law-making authority of Parliament, which will provide a single, official, public source for all New Zealand legislation.^{[Note163: A list of drafting agencies may be accessed at http://www.pco.govt.nz/drafting-agencies/. Note that the 78 local authorities are excluded from this project.]} Typical secondary legislation are most regulations and rules, and many notices, orders, determinations, and warrants.^{[Note164: ‘About legislation,’ Parliamentary Counsel Office, accessed 17 January 2018, http://www.pco.govt.nz/about-legislation/.]} Secondary legislation currently available is published in the New Zealand Gazette or in various newspapers and websites.

This commitment picks up the Access to Secondary Legislation Project which commenced in September 2015. Building on the success of the primary legislation website for the legal profession, business and the public, the government wishes to make central government’s secondary legislation equally accessible. Many of these are unavailable in open machine-readable formats or not published at all. Government expects the expanded site will lessen the cost of doing business in New Zealand and improve the ability of individuals and businesses to identify their rights and obligations. Parliament will also use the site to oversee and monitor these instruments. The law will be up-to-date, freely accessible, encourage informed public comment and potentially increase participation in central government work which was previously less visible. By improving public accessibility of New Zealand’s secondary legislation this commitment is relevant to the OGP value of access to information.

The New Zealand Law Society considers that this commitment is a progressive development in improving access to legislation and advised the IRM researcher that the Law Society has expressed support for initiatives to improve the identification and publication of secondary legislation. They went on to say that improving access to legislation will have ‘considerable consequential benefits in improving the quality of legislative instruments and public confidence in the law-making process’. The Law Society had recommended in 2014 that the Regulations Review Committee ‘consider proposing the adoption of a register of legislative instruments ... to ensure enforceability, publicity and notification of legislative instruments’.^{[Note165: NZ Law Society, e-mail to the IRM researcher, 12 September 2017.]}

This commitment could have a transformative potential impact. At present, only all acts of Parliament and the secondary legislation drafted by the PCO are published on the legislation website. This commitment will add those that are drafted by government departments, Crown entities and statutory bodies under the delegated law-making authority of Parliament and by other non-government bodies, and offer a single site for all users of New Zealand’s law. This provides an inherent public good. It modernises practice for all agencies that produce secondary legislation or regulation, significantly improves access for businesses and the public, and changes the traditional process for publishing official notices. In line with the formats for primary legislation, the secondary legislation will be presented in open machine-readable formats, which is a transformative change.

Completion

At the end of the first year of implementation, PCO’s consultation and engagement activities with all involved actors are on track. It has completed most of its analysis of the empowering provisions in New Zealand’s statute book. PCO advised the IRM researcher that it has researched the empowering provisions for 1831 Acts (out of the total collection of 2095), and completed work to reach a preliminary judgment about which of those provisions empowered the making of legislation (as opposed to merely administrative provisions) for 1575 (out of 2095) Acts. It has also discussed its legal research of their empowering provisions with 23 of the 33 administering agencies. Its next step will be reaching agreement with each government department, Crown entity and statutory body that has delegated law-making authority to publish their instruments with legislative effect on the website. The next step towards full publication is to locate and identify all the secondary legislation that is made under these empowering provisions. To achieve this, the PCO will be encouraging agencies that make secondary legislation to produce a list of all the secondary legislation made by them that is in force. This information will be made available through the NZ Legislation website.

This complex and detailed work illustrates the vast scope of this project — it is changing the production and publication of secondary legislation. The IRM researcher notes that this activity will continue throughout the project, and that there is at this stage no end date for the project. It is important to note that for the purposes of coding, the IRM researcher assessed level of completion against the end date of the action plan, June 2018.

The commitment activity to submit this work for consideration for approval by Cabinet activity has been completed. In December 2016, Cabinet gave its approval for the Access to Secondary Legislation Project to proceed, and for a bill to be drafted to implement the project. The Legislation Bill was introduced into Parliament on 20 June 2017. It cannot proceed until after Parliament reconvenes after the 23 September 2017 general election and a new legislative programme is drawn up.

Early Results

Government added this commitment to the action plan after the August 2016 co-creation workshop with the support of the EAP, but without any other public engagement. Internet NZ praised the addition of relevant projects to the action plan.^{[Note166: Jordan Carter, Jay Daley and Debbie Monahan, interview with the IRM researcher, 6 September 2017.]} The Environment and Conservation Organisation of Aotearoa New Zealand (ECO) felt that the commitment description needed more detail, for example, stating its relationship to the Access to Secondary Legislation Project and the earlier Regulations Review Committee. ECO also sought new milestones to further enable legislation and all other stages.^{[Note167: Cath Wallace and Jan Rivers, Environment and Conservation Organisation of Aotearoa New Zealand interview with the IRM researcher, 11 July 2017.]}

There is broad support for the commitment. Sir Geoffrey Palmer, former Prime Minister, Attorney General, and Minister of Justice, advised the IRM researcher on 1 September 2017 that ‘Commitment 6 is excellent work. Access to the law is fundamental’. Fuimaono Tuiasau, an Expert Advisory Committee member, stated that ‘the legislation commitment makes it easier for the average punter to understand—for example, making building a fence is made simpler’.^{[Note168: Fuimaono Tuiasau, telephone interview with IRM researcher, 20 July 2017.]}

At this early stage, only the impact on contributing agencies can be assessed. PCO, when speaking with the IRM researcher, has praised the willing, forthcoming, and supportive response from all agencies. PCO went on to say, ‘They have actively engaged with the analysis we have produced, and shown a strong desire to ensure that a mutually agreed view is formed on the instruments that are considered to be secondary legislation’.^{[Note169: . ‘Quarterly report on Commitment 6, June to August 2017,’ Parliamentary Counsel Office, Unpublished, 23 August 2017.]} The IRM researcher interviewed three agencies that are pilot agencies or are working on putting the regulatory frameworks in place. They essentially endorsed this statement, with one agency testing the proposed drafting template commenting that it is ‘wonderfully user-friendly’.^{[Note170: Inland Revenue, Treasury and Land Information New Zealand, interviews with IRM researcher on 22 and 25 September 2017.]}

Next Steps

The IRM researcher recommends that this commitment is retained in future action plans until it is fully completed. New activities for this commitment will need to be outlined, such as promoting the Legislation Bill and subsequent legislation through Parliament, testing new technologies with the drafters of the instruments, and seeking users’ comfort with the new format of the published instruments. The IRM researcher also recommends that the scope of the commitment be extended to cover local authorities that produce legislation or regulation under the delegated law-making authority of Parliament. Linking to or cooperating with the NZLII site^{[Note171: New Zealand Legal Information Institute, http://www.nzlii.org/.]} would create a single online platform for statute law, case law, law commission reports and other relevant legal resources. The IRM researcher also recommends that the PCO work closely with the Department of Internal Affair’s Service Innovation team’s work on computational legislation.^{[Note172: https://webtoolkit.govt.nz/blog/2017/11/policy-legislation-and-service-innovation/.]}

✪ 6. Improving access to legislation

Commitment Aim:

The government committed to creating a single online legislative resource in open formats for New Zealanders. In particular, the commitment called for consulting and engaging with all government agencies that produce legislation or regulation. It also involved seeking Cabinet approval to create this resource.

Status

Midterm: Substantial

In the midterm, the Parliamentary Counsel Office (PCO) made progress on Milestone 1. It completed most of its analysis of the empowering provisions in New Zealand’s statute book. It also discussed its legal research with 23 of the 33 administering agencies. Three agencies with delegation authority to draft legislation piloted a proposed drafting template. The National-led government approved the commitment’s activity (Milestone 2), and the Legislation Bill was introduced into Parliament. Further progress of the bill depended on the new Coalition government’s legislative programme. For more information, see the 2016–2018 IRM midterm report. [Note102:

“Independent Reporting Mechanism (IRM): New Zealand Progress Report 2016–2018,” Open Government Partnership, https://www.opengovpartnership.org/wp-content/uploads/2001/01/New-Zealand_MidTerm_2016-2018.pdf. ]

End of term: Complete

PCO completed its work on Milestones 1 and 2. It completed its legal research on current legislation (2,100 acts) to identify the provisions that empower agencies to make secondary legislation. It also concluded discussions with the 33 central government agencies that administer acts of Parliament. These discussions clarified which provisions empower the making of secondary legislation and which empower the making of administrative instruments.

PCO notified the IRM researcher that it carried out external, independent research on how end users find secondary legislation. It interviewed users who were representative of New Zealand citizens and businesses (large and small) to gain insights of their experiences and challenges when searching for secondary legislation. This research is informing how the PCO will incorporate a large collection of secondary legislation into its existing website (http://www.legislation.govt.nz). [Note103: Email from PCO to the IRM researcher, 17 October 2018.]

PCO further stated that its quantitative and qualitative analyses of secondary legislation informed its planning for delivery of future services. Its end-user research is contributing to the development of its information technology (IT) systems. In addition, some agencies continue to pilot the drafting template.

The Legislation Bill received its first reading in the House of Representatives on 5 December 2017. It was referred to Parliament’s Justice Select Committee. The committee reported back to the House on 1 June 2018, recommending changes that ensure earlier access to the secondary legislation. The bill now awaits the legislative process through Parliament. [Note104: See “Process of Legislation,” New Zealand Parliament, https://www.parliament.nz/resource/en-NZ/00HOOOCProgressLegislation1/a562beef753c9a53de6f91c5311614b064afc3e8. As of 21 September 2018, no date had been set for its second reading in the House.] Within one year from the commencement of the new Legislation Bill, secondary legislation makers will have to provide information about their in-force secondary legislation to the PCO. The PCO will publish it all as hyperlinks on the New Zealand legislation website for improved interim public access.

The Cabinet decided that secondary legislation made by local authorities and council-controlled organisations falls out of scope for this stage of the work. The Cabinet reached this conclusion while considering the scale of and time to complete the work. It directed the Department of Internal Affairs to explore options for making legislation by local authorities more accessible to users. [Note105: See self-assessment report http://www.ogp.org.nz/assets/Publications/52cf8fb192/National-Action-Plan-2016-18-End-term-Self-assessment.pdf, page 31.] PCO is scoping its upgraded IT system development to allow for future local government secondary legislation.

PCO expects that a companion bill, the Secondary Legislation (Access) Bill, will be introduced into Parliament in 2019. That bill will amend each identified provision in each act to expressly state which provisions empower the making of secondary legislation. Preliminary PCO analysis indicates that this bill could amend approximately 1,500 acts.  ^{[Note106: “Access to Secondary Legislation Project News,” Parliamentary Counsel Office, http://www.pco.govt.nz/access-project-news/, accessed 18 July 2018; “What Agencies Need to Know and Do,” Parliamentary Counsel Office, http://www.pco.govt.nz/access-project-agencies-need-to-know/, accessed 18 July 2018.]} PCO’s research found that about 4,000 provisions empower the making of secondary legislation. This suggests that there may be many thousands of items of secondary legislation currently in force. [Note107: http://www.pco.govt.nz/access-project-agencies-need-to-know/, accessed 18 July 2018.]

Did It Open Government?

Access to Information: Marginal

The work completed in this commitment constitutes the first stage of a long-term Parliamentary Counsel Office (PCO) project to create one official source for all of New Zealand’s legislation. The completed product will provide easy access to legal information, major efficiencies for the legal profession and the public, and encourage further innovation. The PCO will eventually make many regulations and other secondary legislation currently unavailable in open machine-readable formats or not published at all available on the same site as New Zealand’s primary legislation. At this early stage of the project third parties are already developing new products and services using government’s online legislation.

PCO has not disclosed more information to the public but has marginally improved access to information at this stage. Its work with the agencies that draft the statutory instruments has improved the quality of the information that will be disclosed to the public. Land Information New Zealand advised that the new drafting template permits “concise drafting of what is the standard or directive.” The department also noted there is “clear separation of guidance material into separate guidelines,” “the conveyancing industry has been accepting of the new drafting format/ process,” and there is a “discipline of better, clearer language.” [Note108: Email from Land Information New Zealand, 8 October 2018.] PCO is also creating a reference group of government officials to assist it in planning and supporting the transition. [Note109: “Access to Secondary Legislation Project News,” accessed 19 November 2018.]

Full implementation may take up to five years. The Parliamentary Justice Select Committee’s has required the PCO to release basic information about each secondary law within one year of the commencement of the Legislation Bill. This will result in significantly earlier public access to this secondary legislation.

Carried Forward?

Commitment 4 in the 2018–2020 action plan continues this transformational work, which is expected to take at least five more years. The IRM researcher repeats the IRM midterm report recommendation. The IRM researcher suggests linking or cooperating with the New Zealand Legal Information Institute site. [Note110: New Zealand Legal Information Institute, http://www.nzlii.org/.] The IRM researcher also recommends inclusion as a milestone in future action plans the Department of Internal Affairs’ future work to explore options for making local authorities’ legislation more accessible to users.