Law Society pushes for parliamentary oversight for secondary legislation

The New Zealand Law Society | Te Kāhui Ture o Aotearoa is urging that the Secondary Legislation Bill must ensure that Parliament has oversight of secondary legislation.

In submissions made Thursday to the Regulations Review select committee of Parliament, the Law Society said that the bill is not just a minor or technical piece of legislation, as it complements the Legislation Act 2019 by introducing the framework that applies to secondary legislation.

The two will ensure that secondary legislation is transparent and accessible, as well as subject to oversight by Parliament. The Law Society said that the bill has an important role in both supporting and advancing the rule of law by ensuring people can easily know what a law is and in upholding the constitutional principle that Parliament, not the executive, is the supreme legislative power in New Zealand.

The Law Society takes exception to schedule 33 of the bill removing the “legislative effect” test set out in section 5 (1) of Legislation Act 2019.  Under the act, secondary legislation is defined as any instrument that “is made under Royal prerogative and has legislative effect.”

In effect, secondary legislation is not defined by what it is called or how it was described when it was made, ensuring that legal status is determined by substance and not by form, the Law Society said. By removing the test and replacing it with a finite list of instruments in a new schedule of the act, instruments not actively listed by Parliament on the schedule will not have to be published or presented to Parliament, exempting these instruments from disallowance procedures.

“The Law Society has consistently highlighted the need to ensure that all instruments with legislative effect should be published and subject to Parliament’s oversight,” the Law Society wrote. “This is particularly important with respect to instruments that are made under the Royal prerogative. Unlike other secondary legislation these instruments are made under the Sovereign’s common law powers, not under a power delegated by Parliament.”

Exemptions from publication, presentation and disallowance

The Law Society also recommended that the select committee seek advice on the basis for each of the exemptions to the requirements of being published, presented to the House of Representatives, and subject to the Parliament’s disallowance procedures, which are proposed in schedules 35 and 36 of the bill.

The basis for exemptions should be clearly justified, the Law Society said. It recommended that exemptions must both serve a legitimate purpose and is no broader than necessary to achieve its purpose. It agreed with the Justice Committee, which said exemptions “should be rare.”

The Law Society also expressed its concern that there is no system of oversight in the bill that ensures exemptions are property applied. Any exemptions should trigger a report from the appropriate agency, outlining to Parliament the secondary legislation, the empowering provision from which it is based, that an exemption has been applied, and the grounds for that exemption where applicable.