Making New Zealand’S Secondary Legislation Readily Accessible (NZ0015)

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

Commitment 4: Making New Zealand’s secondary legislation
readily accessible
Objective:
To make New Zealand’s secondary legislation readily-accessible4
.
Ambition:
This commitment will continue the work that was started in the National
Action Plan 2016-2018. Parliamentary Counsel Office will work with the
makers of secondary legislation to gather information about their secondary
legislation and make it available on the New Zealand Legislation website
(http://www.legislation.govt.nz/).
As a first step New Zealanders will be able to access a complete list (and
related information) of current secondary legislation, including where the
full text can be found.
Status quo:
Currently, makers of secondary legislation are empowered to make that
legislation then publish it in a variety of ways, or not publish it at all. To
date, Parliamentary Counsel Office has identified over 100 different makers
of secondary legislation and the majority of them are not part of central
Government agencies. The result is that it is difficult for people to find
secondary legislation and to know whether they have the current version if
they do find it.
Approach:
Parliamentary Counsel Office is undertaking a project to make secondary
legislation available on the New Zealand legislation website (alongside
Acts, Bills, and other legislation). The part of the project covered by this
commitment is expected to be an intermediate stage that will provide a
complete list (and related information) of current secondary legislation on
the New Zealand Legislation website, including where the full text can be
found. The second and later stage involves the publication of the full text of
secondary legislation to the New Zealand Legislation website.
Legislation is required to provide the framework and create obligations on
makers of secondary legislation to support this work. The Legislation Bill
is currently before the House and a companion Bill with the working title
of Secondary Legislation (Access) Bill will also be introduced to Parliament. Regulations will be needed, amongst other things, to specify the list
information that makers will need to provide.
This work will greatly improve access to and transparency of New Zealand’s
secondary legislation. Secondary legislation published on the website will be
subject to oversight by Parliament’s Regulations Review Committee, which
will ensure proper process for all secondary legislation.
Lead Agency: Parliamentary Counsel Office
Timeline: October 2018 – June 2020
Commitment 4: Making New Zealand’s secondary legislation readily
accessible
OGP Values
Transparency, Technology
and Innovation
Verifiable and measurable milestones to fulfil
the commitment
Start date End date
Compile a complete list of makers of secondary
legislation
2018 2020
Engage with makers of secondary legislation to:
• encourage them to create a list of their current
in-force secondary legislation in preparation for
the commencement of the Legislation Bill “list”
duty
• advise them of additional information about
their secondary legislation that will be required
to accompany the list
• encourage them to make their current in-force
legislation publicly available on a website
2018 2020
Creation of technology and processes to enable
lodgement and publication of information on the
NZ Legislation website5
.
2018 2020

4. Making New Zealand’s secondary legislation readily accessible [42]

Objective: “To make New Zealand’s secondary legislation readily-accessible”.

Ambition: “This commitment will continue the work that was started in the National Action Plan 2016-2018. Parliamentary Counsel Office will work with the makers of secondary legislation to gather information about their secondary legislation and make it available on the New Zealand Legislation website. [43] As a first step New Zealanders will be able to access a complete list (and related information) of current secondary legislation, including where the full text can be found”.

Milestones:

1. “Compile a complete list of makers of secondary legislation”;
2. “Engage with makers of secondary legislation to:

• encourage them to create a list of their secondary legislation in preparation for the commencement of the Legislation Bill “list” duty;
• advise them of additional information about their secondary legislation that will be required to accompany the list;
• encourage them to make their current in-force legislation publicly available on a website”;

3. “Creation of technology and processes to enable lodgement and publication of information on the NZ Legislation website”.

Start Date: October 2018

End Date: June 2020

Context and Objectives

The objective of this commitment is to make New Zealand’s secondary legislation, excluding that created by local authorities and council-controlled organisations, easy to find. Typical secondary legislation comprises most regulations and rules, and many notices, orders, determinations, and warrants, [44] published in the New Zealand Gazette, newspapers and websites, or not at all. Much of this secondary legislation is not available in open machine-readable formats or published at all. [45]

This commitment is the next stage of OGP Starred Commitment 6 of the 2016-2018 action plan [46] which continued earlier work to address the issue that much of New Zealand’s secondary legislation is not easy to find. This is the Parliamentary Counsel Office (PCO)’s Access to Secondary Legislation Project, whose goal is to create a single authoritative source of all secondary legislation to address major issues identified by several reviews. [47] This commitment’s ambition is to have a full list of secondary legislation on the legislation website [48] with a hyperlink to the owner’s website where the full text is currently found. This secondary legislation is not drafted by PCO but made by around 160 mostly non-central government bodies. Local government legislation and by-laws are excluded. This interim procedure requested by Parliament’s Justice Select Committee on 1 June 2018 provides improved public access on the NZ legislation website to a list of the secondary legislation.

This work will improve access to and transparency of secondary legislation and subject it to review by Parliament’s Regulations Review Committee. It meets OGP’s access to information and technology and innovation for openness and accountability values by providing open access to information and preparing the new infrastructure, technology and drafting processes to enable full text publication on the NZ Legislation website. This commitment comprises the preliminary work to prepare for future full publication on the NZ Legislation website. A future stage will introduce a standard drafting template and require publication through a secure online portal.

The resulting single source for primary and secondary legislation will enable the public to understand more readily what government does and help them influence decisions.

PCO will compile a list of all makers of secondary legislation and encourage them to publish this legislation on their websites at this stage, and to list it also with the PCO. The PCO will publish the list on the Legislation website and create the IT infrastructure and processes for lodging it on the New Zealand legislation website once the enacting legislation is passed.

If fully implemented as designed, this commitment could have transformative impact as government, firms and the public will be able, for the first time, to access an authoritative list of and links to secondary legislation created under the delegated law-making of Parliament. This single list will enable the public to understand and meet their regulatory rights and obligations more easily. The New Zealand Law Society [49] advised the IRM researcher in 2017 that this work 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 Parliament’s Regulations Review Committee ‘consider proposing the adoption of a register of legislative instruments to ensure enforceability, publicity and notification of legislative instruments’. [50]

The activities are specific but the dates are general due to this work being dependent on Parliament enacting the Legislation Bill and a companion Secondary Legislation (Access) Bill which is expected to be introduced to Parliament in December 2019. [51] This Bill will make about 4,000 amendments to 600 Acts. Milestone 3 will only be needed if these two Bills are enacted and commenced. Completion also relies on the secondary legislation makers completing their work in the allotted time. All need to publish online their various rules, notices of appointments, declarations, etc., in some cases, for the first time. As some agencies have no publishing experience, they have to prioritise this work over other commitments and resource and train law drafters to publish online. The New Zealand Transport Agency, a maker of secondary legislation, advises that a cross-government benefit has been the creation of a drafting practice group which shares advice and experience. [52] Others want interpretation guidance included in this commitment’s scope.

Next steps

If this commitment is carried forward to the next action plan or if there are improvements to the implementation of this commitment, the IRM researcher recommends work to:

• carry out the next stage of the Access to Secondary Legislation Project - publishing the full text of each piece of secondary legislation on the NZ Legislation website. This will require new activities, completing the PCO’s IT technology and process work, and depends on Parliament enacting and commencing the Bills currently before it; and to
• carry out Cabinet’s directive to the Department of Internal Affairs to explore options for making local authorities’ legislation and by-laws more accessible to users. [53]

4. Making New Zealand’s secondary legislation readily accessible

Substantial:

Aim of the commitment

This commitment aimed to make NZ’s secondary legislation, excluding that created by local authorities and council-controlled organisations, easy to find. “Secondary legislation” comprises most regulations and rules, and many notices, orders, determinations, and warrants; some are published in NZ’s gazette, websites, and newspapers, while others aren’t published at all. This preliminary preparation for future full publication of NZ’s secondary legislation on the NZ Legislation website ^[35] was the next stage of OGP “starred” Commitment 6 of the 2016–2018 action plan.

Did it open government?

Marginal

While this commitment is substantially complete, change in government practice on improving access to information is only marginal as the enacting legislation only came into force on 28 October 2021. Work remains to hyperlink relevant empowering provisions in primary legislation to full versions of the secondary legislation published on the NZ Legislation website. The Legislation Act 2019 ^[36] and the Secondary Legislation Act 2021 (passed by Parliament during COVID-19) ^[37] definitively determine, for the first time in New Zealand, law that is categorised as “secondary legislation.” New regulations require that secondary legislation is progressively published online. ^[38] By the end of 2021, the general public and civil society were largely not aware of this progress. [39]

Every Act on NZ’s statute book was assessed, the actual number of bodies empowered to make legislation was clarified, and the law-drafting practice was updated. ^[40] The Parliamentary Counsel Office (PCO) has started to release new reprints of NZ’s empowering primary legislation that include tables telling users where secondary legislation must be published or made available, what is presented to Parliament, and what is disallowed. ^[41] PCO expects this work to take up to four months and to add about 2,700 publication, presentation, and disallowance tables to the legislation.

This commitment’s workload for PCO and agencies was greater than expected. Agency lawyers and Parliament’s Regulations Review Committee staff consider the programme’s success is due to the leadership, project management, expert assistance, resourcing, and pragmatism of the PCO, noting that this meant that the “agencies had to get on board.” ^[42]

The NZ legislation website is becoming the point of access for all of New Zealand’s primary and secondary legislation. While change in government practice is marginal at this stage, the potential for transformational change remains. Foundations have been built for future improvements, led by the newly appointed PCO stewardship team. ^[43] Stakeholder feedback reveals competing views on retaining the current decentralised approach for storing secondary legislation online or holding it all on the NZ Legislation website. Stakeholders also note a need to improve pre-April 2015 legislation’s accessibility to people using screen reader software. [44]