Allan KiritapuSECONDARY LEGISLATION BILLThird ReadingHon KIRITAPU ALLAN (Minister of Conservation) on behalf of the Attorney-General: I present a legislative statement on the Secondary Legislation Bill. I move That the Secondary Legislation Bill be now read a third time.This bill represents the culmination of efforts over many years beginning under the last Government and carried forward by this one. It's an unusual bill because most of its 300-plus pages are devoted to fleshing out the definition of secondary legislation in section 5 of the Legislation Act 2019. To explain the need for this I will go briefly into some history. This will remind members why this area of law is in desperate need of reform and why the Regulations Review Committee recommended a serious overhaul in its report in 2014.The Legislation Act 2012 introduced two new terms for types of delegated legislation: legislative instruments which includes most instruments made by the Governor-General as well as some that are made by the House; and disallowable instruments which includes any other instruments that make law. But that is only the start of it. There is significant overlap between these categories because the definition of disallowable instruments includes legislative instruments. Empowering Acts can also exclude legislative instruments from disallowance. So there are four categories: instruments that are disallowable and legislative; second instruments that are not disallowable and are legislative; third instruments that are disallowable and not legislative; and fourth instruments that are not disallowable and are not legislative.It was this complex structure as a whole that troubled the Regulations Review Committee. They were particularly vexed by the third category disallowable instruments that are not legislative instruments for which the committee decided that for brevity they needed to invent an acronym: DINLIs. They set out the multiple problems and their recommendations in their report on their 2014 Inquiry into the oversight of disallowable instruments that are not legislative instruments—that's the title of the report. Among the committee's concerns was being unable to identify DINLIs easily. Most of them are not identified as such by empowering legislation. Instead they fall under the definition of significant legislative effect" in section 39 of the Legislation Act 2012. Whether an instrument has a significant legislative effect was open to interpretation. As a result it was not always apparent whether an instrument made law. More than a mere inconvenience this meant it was unclear where Parliament has delegated a power to make law and it impeded the ability of this House to oversee the use of these powers.The committee recommended that the Government introduce legislation first to ensure that every empowering provision stated which category the instruments made under it fall into and in conjunction with that to remove the "significant legislative effect" test from the Legislation Act. The bill before us together with the Legislation Act 2019 does those things. I'm glad to say that in the process it consigns the concepts of legislative instruments disallowable instruments and DINLIs to legislative history. The Legislation Act 2019 will for the future quite simply define an instrument to be a secondary legislation if an Act that it is—hmm? Quite simply this bill adds those statements to all the provisions across the statute book that empower the making of secondary legislation.When Parliament enacts this bill it will delineate for the first time where it has conferred a power to make law and provide for the publication and oversight of the instruments in question to be regulated centrally in the Legislation Act 2019 rather than in hundreds of separate Acts. In future any bill that comes before the House will be expected to state where it includes a power to make secondary legislation so that Parliament will determine this going forward. However there are exemptions to the rule of course.The bill does a few things. It brings together in one place for the first time the exemptions from the general publication presentation and disallowance requirements of the Legislation Act 2019. These are contained in Schedules 35 and 36 of the bill which will replace Schedule 3 of the Legislation Act 2019 at different stages of that Act's implementation. Some secondary legislation is exempt from the usual requirements to be published and presented to the House because it contains sensitive information that should not be publicly disclosed. In a small number of cases secondary legislation is exempt from disallowance where it would be inappropriate for Parliament to override the decision of the maker such as the Remuneration Authority's determinations of our salaries.Most of the exemptions in the bill continue the status quo as Parliament has previously enabled the maker of these instruments to withhold them from publication and presentation. This bill will make a couple of improvements in this area. Firstly it will enhance transparency by ensuring that all such exemptions are listed in one place—Schedule 3 of the Legislation Act for those that are interested. Secondly it will insert a new section 83A into the Legislation Act 2019 that will require the Chief Parliamentary Counsel to report annually on the extent to which makers of secondary legislation have relied on exemptions from presentation in the preceding year. The report will be presented to the House by the Attorney-General enabling further inquiries to be made as to the use and ongoing appropriateness of these exemptions.The bill also makes a number of amendments to the Legislation Act 2019 to fine-tune the framework for secondary legislation set out by that Act. The new section 83A that I mentioned just before is one of those. The other notable change is an amendment to the definition of secondary legislation to bring the secondary legislation made under the royal prerogative more closely in line with that made under statutory empowering provisions. This bill along with the Legislation Act 2019 will be brought into force together later this year. From that point the definition of secondary legislation will apply to all relevant instruments and they will clearly be disallowable by the House subject of course to the few exemptions.This Act provides ultimately for secondary legislation drafted by agencies other than the Parliamentary Counsel Office to be published centrally on the New Zealand Legislation website. However the scale of the task of identifying and republishing all secondary legislation means that this process must be staged. Initially the publication requirements for secondary legislation that applied immediately before the commencement of the Legislation Act 2019 will be preserved.The Act and the bill will support improved access to secondary legislation in the following ways. First it will be clear from each empowering provision whether instruments made under it are secondary legislation. Secondly where a new power to make secondary legislation is enacted the secondary legislation made under it will be published and notified in a consistent manner. These publication and notification requirements will be set by regulations under the Legislation Act. Thirdly notes will be published under each empowering provision stating the publication presentation and disallowance requirements for secondary legislation made under it so that they are apparent on the face of the Act. Users will not have to look to other legislation to determine what those requirements are.Finally I'd like to thank the people who were instrumental in bringing this bill to this point. Development as you'll recall of this bill began under the Hon Chris Finlayson in the last Government who was a great proponent of this work. The Regulations Review Committee—which you once chaired and I was a member of along with many colleagues in this House—as well as opening the inquiry that led to the bill has provided its advice on many occasions throughout its development. The committee also examined the bill and made helpful recommendations particularly in regard to exemptions from the Legislation Act. I thank the various chairs deputy chairs and members of the committee for their input.The development of this bill if not necessarily a labour of love has been carried out with the incredible diligence of many officials in the dozens of departments that administer the Acts it will amend and I thank them all for their efforts. I also want to thank the Law Society Transparency International New Zealand and members of the public who made submissions on the bill to the Regulations Review Committee. I commend the Secondary Legislation Bill to the House."