Frequently Asked Questions

This page was last updated on 3 November 2020

Foundations
0.1 What can you expect from your drafter? And what does your drafter need from you?

Developing a Bill: Pre-Introduction
1.1 What policy approval do I need to instruct the PCO?
1.2 How detailed does a Cabinet paper seeking policy approval need to be?
1.3 Can I instruct the PCO without having Cabinet policy approval?
1.4 When do I need to consult LDAC?
1.5 Who do I need to consult when developing policy?
1.6 Do I have to do a regulatory impact statement?
1.7 What happens if new policy ideas arise in the course of drafting?
1.8 How do I estimate timing for developing a Bill (including for a legislation bid)?
1.9 How do I estimate the size and complexity of a Bill for a legislation bid?
1.10 Why do I need to estimate, in a legislation bid, the timeline for the secondary legislation associated with a Bill?
1.11 What if the Minister wants a Bill that is not on the current legislation programme?
1.12 Which department instructs if more than 1 is involved?
1.13 Can I include a departmental draft as part of the instructions?
1.14 Can I send instructions to PCO before they are complete?
1.15 How do I calculate a realistic LEG date or introduction date?
1.16 Can I use images in Bills?
1.17 Can I use links in Bills?
1.18 Who can I show the draft Bill to?
1.19 Is there a template for a disclosure statement and how do they get published?

Developing a Bill: At Select Committee
1.20 How do I estimate the time needed at select committee?
1.21 Can I talk to other departments or to submitters while in select committee?
1.22 How is the role of departmental officials different on a member’s Bill or a local Bill?
1.23 Who advises on whether or not a change is within the scope of a Bill?
1.24 What happens if the committee has a different view from the Minister’s view?
1.25 What happens if it is not clear what the committee decided?

Developing a Bill: At Committee of Whole House
1.26 What are the critical workability issues that I must check on a Bill before the Committee stage?
1.27 Should an SOP be released only when the date for a Bill’s Committee stage is set?
1.28 I’ve found an error after Committee stage – can PCO fix it?
1.29 The Bill must be assented to urgently, what can I do?

Developing Secondary Legislation
2.1 What is the process for instructing on secondary legislation?
2.2 When and why does PCO certify secondary legislation?
2.3 What is the 28-day rule and how is it calculated?
2.4 What is archival paper (“goatskin”) and who supplies it?
2.5 What is the process for notifying legislative instruments in the Gazette?
2.6 When would I need to arrange for publication in a Gazette on a day other than a Thursday and how do I do that?
2.7 Do I have to arrange for presentation to the House?
2.8 How soon after it is made will the legislative instrument be published on the NZ Legislation website?
2.9 Can the legislative instrument be published on the department’s website before it is published on the NZ Legislation website?
2.10 How long will it take for amendments to be consolidated into a reprinted version of the principal legislative instrument?
2.11 Do instruments not drafted by PCO appear on the NZ Legislation website?

After Enactment or Making
3.1 I’ve seen an error in legislation published on the NZ Legislation website – can PCO fix it?
3.2 Can I publish our department’s legislation on our website?
3.3 Can I convert legislation on the website from PDF to Microsoft Word?

Foundations

0.1 What can you expect from your drafter? And what does your drafter need from you?

Turning policy into law is a team effort, and it’s valuable to understand the different roles in this team. The instruction kit gives you some key tools and the broad description of these roles. Below are tips on what you can expect from your drafter and how to make the most of their skills.

You can expect your drafter to … Your drafter needs you to …
Ask lots of questions … your drafter wants to understand what you’re trying to achieve (the big picture purpose and the detail). They need to understand your policy so that they can implement it well and identify any unintended gaps or consequences. They won’t just identify problems but will consider your comments carefully and will work with you to help identify and test options for solutions where possible. Engage actively with their questions and respond promptly with comments on drafts … if it takes too long for you to respond to questions or to drafts or if you just pass issues around without resolving them, we can lose a lot of time.
Read drafts critically … this includes checking it against instructions, making sure it implements your policy, and checking that nothing is missing. Don’t just answer your drafter’s questions.
Recognise that the final decision on policy is yours … while your drafter needs to understand and kick the tyres on your policy, they know that the final decision is yours and will work with you to implement this. The PCO is realistic about the political context that we all work within.
Use plain language to communicate the policy clearly and effectively … your drafter is trying to ensure the legislation communicates clearly and effectively.
Work through each draft carefully to test and challenge it constructively, but recognise the drafter’s drafting expertise … In broad terms, your drafter is responsible for the way that the legislation is expressed and presented. Focus your feedback on what you want to achieve, not on the exact words to be used. Being wedded to “sacred phrases” can hold the drafter back from finding better alternatives. But if you don’t understand something, or have a concern about the way something is worded, let your drafter know. If they have a good reason for the way it’s done, they will tell you.
Give you advice on the legislative process and design … drafters are experts in the legislative process and environment. Your drafter can help you navigate through the process, find a way round your special problem, or find someone who can. It’s often helpful to test your proposals with the PCO early before instructing so that we can help work through the best ways of designing the legislation. Let your drafter know if policy, timing, or process needs to change … let your drafter know as soon as possible so they don’t waste effort or so they can adjust their work priorities. This includes letting your drafter know if the legal or general context changes, eg, another department or an important stakeholder expresses serious concerns about the policy.
Care about whether the law is accessible, fit for purpose, and constitutionally sound … your drafter is seeking to make legislation that works in all these ways. The PCO has a statutory objective to exercise stewardship of New Zealand’s legislation as a whole. So we look at the big picture (across all legislation) and the medium, not just the short, term. If your drafter thinks that there are risks that your law will not be fit for purpose, accessible, or constitutionally sound, they will let you know so that together you can consider alternatives. Sometimes the PCO needs to raise serious issues that cannot otherwise be resolved with the Attorney-General, but we will talk to you first. Care about these things too … the PCO knows that there are many different perspectives on these issues and that we each bring different expertise to the table. You are stewards of your own legislation. Our joint role is to make sure any trade offs are identified and decisions are made with knowledge of those trade offs.
Take into account your timeframes where possible … the PCO understands the importance of trying to draft to an agreed timetable. Understand that your drafter needs to balance your work with other work … at times your drafter may need to give priority to other legislation, but will let you know if this may impact on your timetable.
Be open to feedback … the PCO will regularly seek your feedback to find ways to improve the way we work together and how we draft legislation. If something is not working, the PCO wants to know so we can make it work better next time. Be open to feedback too!

Unresolved concerns

If you have any serious concerns about the drafting that discussion with your drafter fails to resolve, you should raise them with your Drafting Team Manager (or the Deputy Chief Parliamentary Counsel).

Developing a Bill: Pre-Introduction

1.1 What policy approval do I need to instruct the PCO?

Usually your Bill will have been given a place on the legislation programme at the start of the year. Then Cabinet needs to approve a policy paper authorising your Minister to issue drafting instructions to the PCO.

In addition, Cabinet must approve the policy for the Bill before you instruct the PCO to start drafting. (See Cabinet Manual 7.52 & 7.53 and FAQ 1.3 below.)

However, unexpected urgent situations do arise. In this case:

  • If the need for your Bill is unexpected, it may not be on the legislation programme. If so, your policy paper needs to seek a priority for the Bill on the programme (as well as authority to instruct the PCO).

  • Please also talk to your PCO team manager as soon as possible on the timetable and process, and we will work with you to find the best process to follow.

1.2 How detailed does a Cabinet paper seeking policy approval need to be?

Your paper seeking policy approval needs to be pitched to give the Minister and other members of Cabinet sufficient information to be able to understand and authorise the policy proposal. You need to ensure you are in a position to provide instructions to the PCO that are clearly within the scope of that approval.

However, do not pitch it at a level that is so detailed that you cannot adjust how something is achieved (as opposed to matters of high policy) during the drafting process.

For example, aim to describe the policy outcome you are seeking rather than structuring recommendations in a way that recommends approval of specific wording or a specific drafting approach. It is a balancing exercise between giving Ministers enough information to enable them to approve the policy, and not specifying so much detail that it limits development of the most appropriate legislative solution during the drafting phase.

Exactly what is required will depend on context – controversial matters may require more detail to ensure Ministers understand the implications.

For a significant legislative proposal, it may be a good idea for your policy paper to seek authority for the Minister, or a group of Ministers, to approve matters of detail consistent with the policy that arise during the course of drafting.

PCO team managers are happy to review your draft Cabinet papers to provide assistance in this area.

1.3 Can I instruct the PCO without having Cabinet policy approval?

Cabinet approval of the policy of a Bill is required before you instruct the PCO to start drafting. Cabinet policy approval is vital for Cabinet collective responsibility. Importantly also, drafting without policy approvals is very often a false economy resulting in lost time because:

  • Consultation prior to Cabinet approvals is important to highlight areas where further discussion between agencies or Ministers is required, so that the policy is better worked through before drafting starts, diminishing the need for constant re-drafting.

  • If legislation is drafted without Cabinet policy approvals and Cabinet later reaches a different decision, there are significant opportunity costs for both the PCO and the agencies involved, as well as problems and issues from having to unwind drafting.

In exceptional circumstances, there is a process under the Cabinet Manual by which your Minister can seek the Attorney-General’s permission for the PCO to start work ahead of policy approval. (See Cabinet Manual 7.52 & 7.53.) This process is designed to be rarely used and only when truly needed and appropriate. It should not be part of standard project planning. You need to consult your PCO team manager before relying on this option in your timetable. Even when the process is used, the policy itself must still be settled and full instructions provided.

If you do think you need to rely on this process, we will help you assess whether your request has merit in advance. The Attorney-General consults the PCO when a request is made. The level of likely controversy in relation to the policy at Cabinet (and so how likely it is that the policy might shift at Cabinet) is a key consideration. We also consider carefully the urgency of the matter, whether the need for the new policy was unexpected, any immovable deadline, the level of Ministerial sign-off, and the length and complexity of the drafting needed.

Your PCO team manager can advise whether and how to seek the Attorney-General’s permission for advance drafting.

1.4 When do I need to consult LDAC?

You can consult the Legislation Design Advisory Committee (LDAC) on legislative proposals for Bills at any point during the policy development stage.

The LDAC provides guidance about when and how to engage with them on their website, or you can contact the LDAC Secretary. PCO team mangers can also provide advice on whether an issue is a drafting one for PCO or would benefit from the LDAC’s guidance.

If you are taking a Bill to the LDAC, please inform the PCO team manager or drafter so that they can be involved in the discussions.

1.5 Who do I need to consult when developing policy?

You need to consult other departments that have an interest in, or may be affected by, proposed legislation as policy is developed and before you prepare drafting instructions. You also need to consult relevant agencies in the wider state sector as appropriate. (See Cabinet Manual 7.33.)

When you provide instructions to us, we may ask which departments have been consulted and suggest other departments to involve. We may also ask you about the feedback received from other departments when you did consult, so we can fully understand the issues as we draft.

1.6 Do I have to do a regulatory impact statement?

Cabinet requires a regulatory impact statement (RIS) to be produced for any policy proposal that:

  • considers options that involve creating, amending, or repealing legislation (either primary or secondary legislation); and
  • is expected to result in a Cabinet paper.

Guidelines for an RIS include:

If an RIS has been prepared, you’ll need to:

  • publish it on your agency’s website
  • provide the URL to the PCO to include in the explanatory note before the Bill is printed
  • provide 40 printed copies of the RIS to the House Office (within half a working day after the date on which the PCO orders the printing of introduction copies) before the Bill is introduced.

1.7 What happens if new policy ideas arise in the course of drafting?

The answer to this depends on the relative importance (or controversy) of the new idea in the scheme of the legislation.

For a significant legislative proposal, it is often a good idea for your policy paper to seek authority for the Minister, or a group of Ministers, to approve matters of detail that arise during the course of drafting. If you have an authority along these lines and if the new matter is one of detail, then you need to prepare a briefing note to the Minister (or group of Ministers) seeking approval. We will be happy to draft in accordance with your instructions if this approval is given.

Even if there is no prior approval for the Minister to authorise matters of detailed policy, if the new matter is relatively minor, we are likely to draft in accordance with your instructions. We will draft on the basis that the new matter is within the existing broad policy approval, or on the basis that it will, in due course, be addressed in the LEG paper seeking approval for the Bill to be introduced.

If you wish to include something in the legislation that directly contradicts the existing policy approval, again it is a question of the relative significance and importance of the matter.

If it is a very insignificant matter of detail, the PCO might draft in accordance with your instructions despite the contradiction with the policy approval. However, in that case, we may require your assurance that the departure from the earlier approval will be specifically covered by a recommendation in the LEG paper and we may to review the LEG paper to ensure the matter is addressed.

In the case of substantive new policy matters or any proposed significant reversal of a decision in the existing policy approval, you will need to take a new paper to the appropriate Cabinet policy committee and get a new policy approval. This is important so that Cabinet collective responsibility is not undermined.

1.8 How do I estimate timing for developing a Bill (including for a legislation bid)?

Provide a realistic estimate of timing for developing a Bill to avoid surprises. Agree the timetable with the PCO drafter or note if PCO has concerns about the timing. This also applies when you develop a legislation bid, even though a lot of factors may change (so don’t just put “unknown”).

Timeframes are affected by the size, complexity, and timing of your Bill. Consult your PCO team manager, but here are some rules of thumb to start with:

  • The time needed is affected by both the size of the Bill (a larger Bill requires more drafting and crucially more checking, even if not very complex) and the complexity of the Bill. (See FAQ 1.9)
  • Past experience indicates that a 50-clause Bill of medium complexity takes at least 3 months to get from instructions to ministerial consultation before LEG. This takes account of drafting time, review by you, development of policy detail that arises in drafting, consultation with other government departments and the LDAC, quality assurance by PCO, and the NZ Bill of Rights Act vet. It does not take account of delays in reviewing the Bill, changes flowing from policy changes, or delays due to consultation.
  • Timing is significantly affected by how settled your policy is.
  • Take into account your own capacity to turn around drafts, respond to queries, and develop policy detail. These timing estimates assume you will promptly review drafts and provide feedback.
  • PCO also has peak busy times in the year. So we caution that:
    • for a new Bill to be passed in a year, you need to provide instructions to the PCO as soon as possible in the first quarter of that year and the Bill needs to be ready for introduction by the end of the second quarter
    • for a Bill to be introduced in a year, you generally need to get instructions to us by the end of the second quarter
    • election years often will have different timing.
  • If you have an exposure draft process, you need to add in the time the exposure draft will be out for consultation. Add a further 4–6 weeks’ minimum to allow for further instructions and PCO to make the changes.
  • Delays in the policy process cannot be made up by shortening drafting time. Also, if timing imperatives result in shortcuts in the policy process, the unresolved issues will generally increase the drafting time needed overall.

(See also FAQ 1.15 and the Bill planner (.docx 21KB) on calculating a LEG date when you need to provide firmer dates for Ministers and others.)

1.9 How do I estimate the size and complexity of a Bill for a legislation bid?

Estimating size

We consider Bills to be:

  • small if they have up to about 20 clauses. These are usually small, targeted measures
  • medium if they have between 20 and about 80 clauses
  • large if they have more than 80 clauses. These will often be replacements of whole current Acts, or multi-pronged amendments to a number of Acts.

When you estimate the size of an amendment Bill, you need to take into account the number of amendments proposed (not just the number of clauses in the principal Act you need to amend).

Estimating complexity

In assessing whether a Bill is low, medium, or high complexity, you need to look at policy, legal, and drafting dimensions. The length of time the department has spent developing the proposals to this point is often a guide to how long you need to allow for the rest of the process and how complex the Bill is likely to be. For example, if the policy work has taken many months, this may indicate that the Bill is of medium to high complexity. A Bill rarely ceases to be complex once policy is settled. (While a Bill that requires little policy work may result in a simple Bill, this is not true if the limited policy work is because you have taken shortcuts or not solved underlying issues.) The PCO can help you assess whether there are design options for reducing the complexity of your Bill.

Complexity is affected by:

  • the novelty and/or difficulty of the legal concepts you are creating
  • the number of existing Acts that are affected, and the degree of complexity of the existing legislation you are amending ‒ changes to a scheme that already has a number of overlapping Acts tend to be highly complex
  • the extent of change required
  • how strongly related the changes are (so better targeted) vs having many initiatives that are weakly related (creating more “moving parts”)
  • the degree to which you can expect the policy to be settled vs in flux during the process. This may be affected by the amount of time you have to settle the policy well before starting drafting, and other factors like stakeholder involvement
  • the use of novel (rather than established) concepts, novel (rather than standard) provisions, your own version of established concepts (rather than simply relying on the generic approach)
  • the extent of consequential amendments (very extensive amendments, even if relatively simple, will increase checking time)
  • the degree of staging of commencement and the need for complicated transitional provisions
  • whether the legislation being amended is already heavily amended and multi-pronged in terms of policy and/or complexity
  • whether you intend to include a lot of detail in the Bill.

1.10 Why do I need to estimate, in a legislation bid, the timeline for the secondary legislation associated with a Bill?

The Cabinet Office circular for legislation bids also asks you to provide timing estimates for secondary legislation associated with your Bill. This is for secondary legislation that will be needed within 12 months of enactment for your Bill to commence and operate effectively (so core to the regulatory package contemplated by the Bill).

This will ensure that the regulatory package as a whole is well thought through and coordinated. In particular, it cuts down on the risk that:

  • a Bill will be passed with a fixed commencement date, but without enough time to develop the secondary legislation needed for it to commence effectively
  • a Bill will be passed with commencement by Order in Council and “sit on the books” for a long time awaiting the necessary regulations. “Latent” legislation causes uncertainty for users, complexity for other legislation (when you have to deal with the risk of further amendments coming into force), and increased risk of wasted Government and parliamentary time.

The Cabinet Office circular generally requires you to:

  • make policy decisions for associated secondary legislation before the first reading of the Bill
  • send drafting instructions to PCO before the Committee of the whole House stage of the Bill. This also helps identify any issues with empowering provisions in time to amend them at the Committee stage.

1.11 What if the Minister wants a Bill that is not on the current legislation programme?

It is preferable for Bills to be included on the legislation programme at the beginning of the year, but new Bills can be added to the programme during the year. In this case, you need to seek a priority for the Bill (as well as policy approvals and authority to instruct PCO) in your Cabinet policy paper.

1.12 Which department instructs if more than 1 is involved?

Usually the instructing agency is the one that administers (or will administer) the legislation being amended (or created). In the case of omnibus Bills that amend several enactments administered by different agencies, the instructing agency is usually the one that led the policy work that gave rise to the Bill. Sometimes agencies may agree on who will act as the lead instructor with responsibility for coordinating instructions and feedback on drafts.

Multi-agency Bills tend to have high risks around lack of coordination and conflicting views and instructions. The key is to:

  • be clear about who the lead instructing agency is
  • settle instructions between agencies before coming to PCO (rather than PCO having to resolve conflicting instructions)
  • copy all parties in on instructions and drafts to keep everyone in the loop.

1.13 Can I include a departmental draft as part of the instructions?

To draft effectively, we need to understand what effect you want and why – good instructions provide this by giving a narrative. This should be your main tool for instructions. (See also the instruction template (.docx 22KB).)

Narrative instructions need to stand on their own (and cannot just be used to explain a departmental draft).

There are some limited cases where a departmental draft can help you identify and understand all the second-tier legal and policy issues to be resolved. However, it can hinder the drafting process if you focus too much on the approach taken or words used in the draft. Talk to your PCO team manager first if you think you would like to use a departmental draft in your instructions.

1.14 Can I send instructions to PCO before they are complete?

As a general rule, send instructions to the PCO when they are complete. However:

  • sometimes it is better to provide instructions to PCO while you get final resolution on some outstanding issues (as long as those issues do not significantly affect the rest of the drafting)
  • it may be possible to provide instructions in tranches if each tranche is reasonably stand alone.

Discuss the best approach with your PCO team manager, and remember:

  • if material is missing or issues are still to be resolved, you need to note this in the instructions so the PCO drafter doesn’t waste time trying to resolve the issue
  • if you provide instructions in tranches, you will need to allow time at the end for you and the PCO drafter to reassess the draft as a whole and to make sure it works as a coordinated package. Using tranches has some risks as it can result in a lot of work at the end of a project to reconcile and resolve issues across the legislation as a whole.

(See the template for drafting instructions on a Bill (.docx 22KB).)

1.15 How do I calculate a realistic LEG date or introduction date?

The time needed to develop a Bill obviously depends on the size and complexity of the project. (See FAQs 1.8 and 1.9 for general help on this.)

However, it is essential that you create a detailed timetable, factoring in all the steps, before committing to an exact LEG or introduction date.

A good way to calculate a timetable is to work backwards from the date of the LEG (or other Cabinet committee) meeting at which you hope to have the Bill approved for introduction. This will help you to see if your estimate is realistic and if it covers all the steps. You can use the Bill planner (.docx 21KB) as a template for your plan.

1.16 Can I use images in Bills?

Yes, Bills can include images, but you will need to provide the images to us in a form we can use in our published versions of legislation.

Images can be supplied in: .vsdx, .svg, .jpeg, .tiff, .png, or (occasionally appropriate) .pdf formats.

Please remember that, if your original image is large, it will need to be reduced to fit on a smaller legislation page size (135mm x 185mm max). This may affect how easy it is for users to read.

See: Production of forms and graphics for publications in legislation on the PCO website.

1.17 Can I use links in Bills?

We strongly recommend that legislation not state website or email addresses (unless they are in non-substantive provisions and are unlikely to change).

This is because content on agency (and other) websites frequently moves location, leading to the legislation itself needing to be updated or amended.

It is possible to embed links in legislation in other ways (although there are still risks of broken links). Please discuss the options with your PCO team manager.

1.18 Who can I show the draft Bill to?

You can show the draft Bill to other departments that are part of the Crown (public service departments, the New Zealand Police, and the New Zealand Defence Force).

If you wish to show the draft Bill to an agency outside of the Crown, you will need to take into account the fact that draft legislation prepared by PCO is subject to legal professional privilege (see section 61 of the Legislation Act 2012).

The Attorney-General has responsibility for deciding whether to release draft legislation outside the Crown (and, as a consequence, potentially waive legal professional privilege).

The Attorney-General has adopted a protocol that sets out certain situations in which draft Bills may be released without first seeking the Attorney-General’s permission. Basically, these situations are when:

  • the chief legal adviser has confirmed the release will not create a legal risk for the Crown
  • the release is to LDAC members approved for the purposes of the LDAC’s consultation on the Bill
  • the release is to a Crown entity for the purposes of the Cabinet approval process or when required by legislation (and is released on an in-confidence basis subject to legal professional privilege).

The protocol is set out in a Cabinet Office circular (CO 19) 2. (See paragraph 9 of the annex to the circular for more detail on when the above situations apply.)

Cabinet may also authorise public release of an exposure draft of a Bill before it is introduced, if it is seen as useful to obtain feedback to assist with the development of the proposal. In that case, PCO will work with you to produce a version of the Bill that can be released to the public. The requirements of the protocol still apply in this case. The chief legal adviser either needs to confirm the release will not create a legal risk for the Crown or seek the Attorney-General’s approval to release the exposure draft.

There is useful LDAC guidance on when and how to carry out an exposure draft process.

1.19 Is there a template for a disclosure statement and how do they get published?

All Cabinet or Cabinet committee papers seeking approval to introduce a government Bill must have a disclosure statement attached that reflects the content of that Bill ‒ as set out in Cabinet Office circular CO (13) 3: Disclosure Requirements for Government Legislation. The circular identifies certain limited types of Bills and SOPs that are exempt from this requirement.

The PCO will publish the disclosure statement on NZ Legislation: Disclosures at the same time as the Bill or SOP is published on the NZ Legislation website. The Bill or SOP’s explanatory note will link to the disclosure statement.

The disclosure statement templates with full guidance material are available on the Treasury website. Please go to the Treasury website and download a new template each time you create a disclosure statement, in case the template has changed.

You need to ensure that PCO has the final disclosure statement at least 2 working days before the likely introduction of the legislation. This is to ensure that the PCO’s Publications Unit has sufficient time to test the conversion and prepare the disclosure statement for publication. If the statement is not provided in time, it may not be published in time for the legislation’s introduction.

You must provide 40 printed copies of the disclosure statement with all legislation you provide to the House Office when PCO orders introduction copies of the Bill to be printed. The House Office will then match up the printed copies with the printed introduction copies of the Bill. See the PCO website and the Treasury website for more detailed information about the publication of disclosure statements.

Developing a Bill: At Select Committee

1.20: How do I estimate the time needed at select committee?

The default position is that a Bill is referred to a select committee for 6 months, but there is no debate if a Bill is referred for a period between 4 and 6 months. If a Bill is referred for less than 4 months, there is a time-unlimited debate on that in the House.

A Bill is generally only referred to a select committee for less than 4 months if there is a strong political or legal reason that requires a Bill to be enacted quickly. Bills have been sent to select committees for very short periods of time. For example, emergency legislation has been referred to a select committee for only a few days. But this is exceptional and will generally attract adverse comment unless it is a true emergency.

Ideally, departmental officials, the committee clerk, and the PCO drafter will meet when a Bill is first referred to a select committee to agree a timetable for the Bill’s consideration.

You need to factor in the following matters when setting the timetable:

  • in setting a closing date for submissions, a committee needs to allow a minimum of 6 weeks, other than in exceptional circumstances
  • the more submissions a Bill is likely to attract, the more time you need to set aside for preparing the departmental report
  • committees are urged to programme sufficient time for the drafting and consideration of amendments, and for the subsequent drafting and consideration of commentaries
  • the select committee should allow 3 weeks between considering the departmental report and considering the revision-tracked Bill. This allows time for further instructions, drafting, any consultation, and quality assurance (approximately 10 clear working days), as well as adequate time for the members to read the RT Bill in advance of consideration. However, discuss with your PCO drafter how much drafting time will be required in the particular circumstances.

The Business Committee may extend the time for a report back on a Bill. Liaise with the committee clerk (in consultation with the PCO drafter) if you want further advice on extending the report back deadline.

1.21 Can I talk to other departments or to submitters while in select committee?

You can talk to other departments to support your advice to the select committee. However, you need to seek the select committee’s permission to discuss matters affecting the Bill with persons outside the Crown (for example, submitters). These requirements apply as soon as a Bill has had its first reading.

1.22 How is the role of departmental officials different on a member’s Bill or a local Bill?

Your role on a member’s Bill or local Bill is different because the Government may not have a fully resolved policy position on it. These Bills can also have significant resourcing implications. Your exact role will be affected by the nature of the Bill, the Bill’s sponsor, the select committee, and your Minister. See SSC’s Officials and Select Committees – Guidelines and talk to your PCO team manager for assistance in particular cases.

1.23 Who advises on whether or not a change is within the scope of a Bill?

Under Standing Orders, a select committee may only recommend amendments that are relevant to the subject matter of the Bill, are consistent with the principles and objects of the Bill, and otherwise conform to the Standing Orders and the practices of the House (SO 300).

Occasionally, an issue arises about whether a change suggested by a submitter fits within this requirement for amendments to be within the “scope” of the Bill.

You are welcome to discuss these scope issues with your PCO drafter. However, the committee clerk is responsible for advising the select committee on Standing Orders. So, for a more definitive answer, refer questions about whether a change is within the scope of the Bill (or other questions on committee or House procedure) to the committee clerk.

Do not assert to a select committee that a change is “outside scope” unless you have first checked with the committee clerk.

This does not prevent you from commenting to the select committee on whether a change relates to the policy that the Bill seeks to achieve.

Occasionally, an issue may arise where you want your Bill to amend more than one Act substantively. Technically, this may make it into an “omnibus Bill” if the amendment is more than purely consequential. The Clerk of the House determines whether or not something is purely consequential.

Standing Orders 266 and 267 provide for when omnibus Bills may be introduced. However, if a Bill is not already an omnibus Bill, it cannot be turned into an omnibus Bill by amendment at select committee (except by the approvalof the Business Committee, leave of the House, or the suspension of Standing Orders). As with scope, discuss this issue with your PCO drafter, but refer to the committee clerk for definitive advice.

1.24 What happens if the committee has a different view from the Minister’s view?

As the select committee’s advisers, you and your PCO drafter are on loan to the select committee and must act on its instructions.

However, you are expected to keep the Minister up-to-date with developments in the select committee. You need to seek approval from the Minister or Cabinet (as appropriate) to policy changes introduced at select committee.

In some cases (for example, if the select committee is tied), the select committee may have a different view from the Minister on proposed changes. For example:

  • the Government may want to make changes but may not have the majority on the select committee. If the select committee does not recommend those changes, the Government may need to make those changes at the committee of whole House stage instead
  • more unusually, a select committee may (by majority) want to make changes that the Minister does not support. The Minister may wish to discuss matters with the committee chair. However, ultimately PCO must draft on the instructions of the select committee (except in truly exceptional circumstances).

See also SSC’s guide: Officials and Select Committees.

1.25 What happens if it is not clear what the committee decided?

Sometimes it is not clear what the committee has decided. In this case, the best approach is to ask the chair, before the meeting ends, to clarify the decision.

If it is not possible to ask the chair in the meeting, compare notes with other advisers and discuss the matter with the clerk after the meeting and ask them to confirm what the decision was. If necessary, the clerk will clarify with the chair of the committee.

If an issue was not raised or fully decided, another option is to provide supplementary advice to the select committee. For minor matters, it may be sufficient for PCO to prepare the revision-tracked Bill on a particular basis and to note the issue in the draft.

Developing a Bill: At Committee of Whole House

1.26 What are the critical workability issues that I must check on a Bill before the Committee stage?

This is your last opportunity to ensure that the Bill covers all matters you need it to, and that neither your policy nor your operational implementation has changed during the life of this Bill. So we recommend that you review the Bill before the Committee stage.

In particular, there are some high risk areas that you need to check. These areas relate to things that often change over the life of a Bill and can have an immediate impact on a Bill’s implementation.

The high risk areas are:

  • Commencement

    • Does the commencement clause fit with your plans for commencement?
    • Have you allowed enough time to develop any secondary legislation that is essential for commencement?
    • If the Bill will commence in stages, will the provisions commence at the correct stages and work as you intended?
  • Secondary legislation

    • What are your plans for secondary legislation?
    • Are the powers to make secondary legislation sufficient (thinking about what you now know about how the Act will work)?
    • Do the powers match proposals for fees/levies? It is worth discussing your plans with PCO to make sure that you have a shared understanding about the scope of the powers.
  • Transitional provisions

  • Key updates

    • Does any new general legislation have an impact on the Bill?
    • Do any consequential amendments need updating?
    • For amending Bills, have any other amendments to the principal Act overtaken yours?

Officials should also discuss with the PCO drafter whether any other areas are high risk or would otherwise benefit from a close review.

1.27: Should an SOP be released only when the date for a Bill’s Committee stage is set?

You should arrange for SOPs to be printed and released as soon as possible after they are drafted and approved (and at least 24 hours before the Committee stage). This gives the House and the public fair and adequate notice of its contents, unless there is a good reason not to release it sooner. Late release of large SOPs in particular can make the Committee stage more contentious.

However, if the Order Paper is full, Bills can wait for some time for their Committee stage. If this is likely, you may not want to print and release the SOP until you are clear on the likely timing of the Committee stage. Otherwise, you may need replacement SOPs to update the Bill for other consequential amendments. Your Minister’s office can work with the Leader of the House’s office on the likely timing of the Committee stage.

1.28 I’ve found an error after Committee stage – can PCO fix it?

If you find an error in the Bill after the Committee stage, let the PCO drafter know as soon as possible.

If the error is found before the third reading, and is significant, the Bill may be able to be recommitted (sent back to the Committee of the whole House) for correction (although this is rare).

If the error is merely clerical or typographical, it may be possible to correct it:

  • under Standing Orders when the Royal assent copy is being prepared (although very few errors are corrected on this basis) or
  • after the Act has been published, by the Chief Parliamentary Counsel under the discretionary powers in section 24(1) of the Legislation Act 2012. (See FAQ 3.1.)

1.29 The Bill must be assented to urgently, what can I do?

As the checking of proof assents, and the process of obtaining Royal assent, is done strictly in the order in which Bills complete their third reading, it is important that you identify any critical dates for enactment early.

If you discuss these with your PCO drafter, or your Minister’s office discusses them with the Leader of the House’s office, they can be taken into account in the ordering of business for the House. As well as ensuring your third reading takes place in time, this may involve ensuring that your Bill’s third reading happens before others. Otherwise if a large Bill completes its third reading before a small Bill, the small Bill’s assent may be held up until the larger Bill is processed.

Developing Secondary Legislation

2.1 What is the process for instructing on secondary legislation?

Secondary legislation is legislation that Parliament has delegated to another a person or agency to make, with the power to do this contained in specific provisions in primary legislation (ie Acts of Parliament). The PCO only drafts secondary legislation that is a “legislative instrument”. See the PCO’s website pages for more general information on secondary legislation.

Most of the guidance on instructing on Bills applies equally to secondary legislation.

On policy approvals see:

On estimating timing for developing secondary legislation, much of the general guidance in 1.8 is still relevant.

On the instructing and consultation process, see:

On technical issues, see:

2.2 When and why does PCO certify secondary legislation?

For secondary legislation that is drafted by the PCO and made through a Cabinet process, the PCO certifies the secondary legislation is in order for submission to Cabinet.

We will always note, in our certificate, any procedural preconditions or waiver of the 28-day rule (see FAQ 2.3) which apply.

In addition, we will qualify our certificate if:

  • we have any doubts about the vires of the secondary legislation (that is, whether it is authorised by the empowering provision), or
  • we consider the secondary legislation is inconsistent with general legal principles, or
  • the secondary legislation does anything that we think creates a real risk of giving rise to concern by the Regulations Review Committee (see the grounds in Standing Order 319).

We will talk to you in advance about any concerns we have that may result in our certificate being qualified on these grounds.

This certificate (and any qualifications) must be noted in the LEG paper.

2.3 What is the 28-day rule and how is it calculated?

Cabinet requires that secondary legislation must not come into force until at least 28 days after it has been notified in the New Zealand Gazette. (See Cabinet Manual 7.96–7.99.)

This rule reflects the principle that the law must be publicly available before it comes into force. However, there are some instances where it is acceptable for you to seek a waiver of the 28-day rule from Cabinet.

Examples of good reasons for seeking a waiver of the 28-day rule are where the secondary legislation:

  • does not require the public to comply, or provides only benefits

  • is made in response to an emergency

  • needs to commence early to:

    • comply with statutory or international obligations, or
    • avoid unfair commercial advantage, or
    • avoid the purpose of the regulations being defeated.

In this case, your LEG paper must seek Cabinet’s agreement to a waiver of the 28-day rule, set out the reasons for doing so, and include recommendations in the standard form (see the CabGuide).

PCO’s certificate to the Minister on the secondary legislation will also note any non-compliance with the 28-day rule.

The Gazette is published on Thursdays, unless you arrange for a Gazette to be also published on another day.

The easiest way to calculate the earliest date on which your secondary legislation can come into force under the 28-day rule is to identify the Thursday on which the instrument will be notified in the Gazette, and then provide for the instrument to come into force on the date of the 4th Thursday following the Gazette date.

2.4 What is archival paper (“goatskin”) and who supplies it?

You or your Minister’s office need to provide an advice sheet for secondary legislation being submitted to Executive Council (eg Orders in Council/regulations).

The advice sheet must be printed on heavyweight archival buff paper that used to be called “goatskin”. (You’ll be pleased to know that goatskin is no longer made of goat. If you have trouble sourcing the paper, email PCO’s Publication Unit (publications@pco.govt.nz) and we can help you.)

See the Template for Executive Council advice sheet (Goatskin) in the CabGuide.

You do not need to print the accompanying order or regulations on the archival paper. The only copy of the order or regulations on archival paper is the version to be signed by the Governor-General, which is provided direct to the Cabinet Office for you.

2.5 What is the process for notifying legislative instruments in the Gazette?

The process by which a legislative instrument drafted by PCO is published in the Gazette differs depending on whether it is an instrument that is approved by Executive Council (eg an Order in Council), or one that is simply signed by a Minister or other person.

Legislative instruments approved by Executive Council

  • The making of these instruments must be notified in the New Zealand Gazette (under section 12(1) of the Legislation Act 2012).
  • After the instrument is approved by the Executive Council and signed by the Governor-General, PCO’s Publications Unit automatically arranges for its notification in the Gazette (in the Regulations Summary Notice).
  • The Cabinet Office notifies the Publications Unit once each instrument is approved, on behalf of departments, so you do not need to do anything.

Ministerial notices

  • Legislative instruments that are signed by a Minister or other person or body, and not approved by the Executive Council, must be notified to the PCO’s Publications Unit by the responsible department or body.
  • You must contact the Publications Unit at least 2 days before the publication day (PCO needs to provide the notice to the Gazette 2 days before publication).
  • See Notifying Legislative Instruments on the PCO website for details about how to notify the Publications Unit.

2.6 When would I need to arrange for publication in a Gazette on a day other than a Thursday and how do I do that?

PCO’s Publications Unit arranges for notification of legislative instruments in a regular Gazette every Thursday. This is suitable for the majority of legislative instruments where there is no particular urgency around notification and commencement.

But if you have a legislative instrument that needs to come into force before the next Thursday, you may want to arrange for publication in an earlier Gazette.

Please let your PCO drafter know in advance if you need an earlier Gazette than the standard Thursday. The PCO can arrange for the publication on your behalf.

2.7 Do I have to arrange for presentation to the House?

The process by which an instrument is presented to the House differs depending on whether it is a legislative instrument (and so drafted by the PCO), or an instrument that is not drafted by the PCO.

Legislative instruments

  • Presentation to the House happens automatically as part of PCO’s publication process – you don’t need to do anything.
  • PCO provides printed copies of all legislative instruments to the House, which means that they are automatically tabled as part of the process.

Instruments that are not drafted by PCO

  • All instruments stated by an Act to be disallowable instruments must be presented to the House not later than the 16th sitting day after the day on which they are made.
  • The process is set out on the Parliament website.

2.8 How soon after it is made will the legislative instrument be published on the NZ Legislation website?

For the regular Thursday Gazette, legislative instruments are published on the NZ Legislation website at 9am on the day they are notified. They are available on the website shortly afterwards.

Publication times can be varied if need be for legislative instruments that are notified in the Gazette on a day other than Thursday (see FAQ 2.6 for more information as to when and how to organise this).

2.9 Can the legislative instrument be published on the department’s website before it is published on the NZ Legislation website?

Normally a legislative instrument is notified in the Gazette on the Thursday after it is made, and published on the NZ Legislation website shortly after its notification in the Gazette. (The PCO does not publish legislative instruments on the legislation website before notification in the Gazette.) Official public notification in the Gazette supports the role of the NZ Legislation website as the single authoritative and official source of legislation in New Zealand.

However, in some cases there may be a need to publish a legislative instrument earlier than on a Thursday. For example:

  • to reduce significant public concern about the content of the instrument
  • to give the public more time to prepare for an urgent change to the law
  • to allow for earlier commencement.

The best way to publish a legislative instrument early is to arrange for its notification in the Gazette on an earlier day. (See FAQ 2.6 for more information.)

In limited cases, PCO can supply a PDF of the final version of your instrument for early publication (eg on your department’s website) or for targeted release to your stakeholders. However, it will not be an official version and, to avoid unofficial versions circulating, we will only do this on a case-by-case basis. Please talk to your PCO team manager if you want to pursue this option.

2.10 How long will it take for amendments to be consolidated into a reprinted version of the principal legislative instrument?

Amendments are taken into the principal legislative instrument as soon as possible after they come into force, but not before. We aim to incorporate amendments within 15 working days after the amendment comes into force.

2.11 Do instruments not drafted by PCO appear on the NZ Legislation website?

No, instruments not drafted by the PCO are not currently published in full on the NZ Legislation website.

The PCO does provide access to some agency-drafted instruments (currently called “Other Instruments”) via the NZ Legislation website if information about them has been supplied to us. We provide an information page that includes the instrument’s name, empowering Act, and a link to where it is published online.

The PCO maintains this information by contacting agencies every month asking for information on any changes to their Other Instruments (repeals, new instruments, etc). See Notifying Other Instruments to the PCO.

After Enactment or Making

3.1 I’ve seen an error in legislation published on the NZ Legislation website – can PCO fix it?

If you see an error in published legislation, please contact your PCO team manager. Some errors can be fixed by the PCO, and others require amending legislation (possibly a Statutes Amendment Bill).

The 2 types of error that the PCO may be able to fix without amending legislation are:

  • Publishing errors – for example, misdirected hyperlinks or, in old legislation, text missing that was present in the assent version. These can be fixed by the PCO’s Publications Unit.
  • Minor obvious textual errors – for example, incorrect cross-references, grammatical and spelling mistakes, or numbering mistakes. In these cases, the Chief Parliamentary Counsel has some limited powers to exercise a discretion to correct certain obvious errors in a reprinted version of the legislation. This power is set out in section 25(1)(j) of the Legislation Act 2012.

3.2 Can I publish our department’s legislation on our website?

We strongly encourage agencies to provide legislation by linking to the NZ Legislation website rather than publishing separate versions (unless of course the legislation is drafted and published only by the agency). This ensures that all website users view official, up-to-date legislation. Do not post PDFs of legislation on the web as, being static, they can easily become out of date and misleading.

3.3 Can I convert legislation on the website from PDF to Microsoft Word?

If you want a Microsoft Word version of legislation to use as you develop your policy or instructions, you can generate one by converting a PDF sourced from the NZ Legislation website if you have appropriate software (such as Acrobat Pro).

Please note, however, that the PCO cannot use revision-tracked Word documents as instructions. (The main reason for this is because we need to understand the rationale for changes and it is too easy for a proposed change to be missed.)

To generate a Word file from a PDF using Acrobat Pro

  1. Open the PDF file.
  2. Click on File.
  3. Navigate to Save As, Microsoft Word.
  4. Click on Word Document.
  5. Provide a name for the word file and Save to a directory.
  6. Open the Word document from the directory in which you have saved it.