LEGISLATION ADVISORY COMMITTEE

CHAPTER 1

Means of achieving the policy objective
1.1 Has the policy objective been clearly defined?
1.2 Has consideration been given to achieving the policy objective other than by legislation?
1.3 Has there been appropriate consultation within the Government?
1.4 Have those outside the Government who are likely to be affected by the legislation been consulted?
1.5 Have all Cabinet requirements for new legislation been complied with?

CHAPTER 2

Understandable and accessible legislation
2.1 Has sufficient time and consideration been given to the preparation of the legislation?
2.2 Have departmental lawyers been fully involved?
2.3 Has the drafter fulfilled his or her role?
2.4 Is the legislation understandable and accessible?

CHAPTER 3

Basic principles of New Zealand’s legal and constitutional system
3.1 Does the legislation comply with fundamental common law principles?
3.2 Have vested rights been altered? If so, is that essential? If so, have compensation mechanisms been included?
3.3 Have pre-existing legal situations been affected, particularly by retroactivity? If so, is that essential? What mechanisms have been adopted to deal with them?
3.4 Does the legislation enable the levying of money? If so, is the levy a tax imposed other than by Parliament?

CHAPTER 3A

Statutory interpretation
3A.1 Have the rules of statutory interpretation been considered?
3A.2 Has the Interpretation Act 1999 been considered?

CHAPTER 4

New Zealand Bill of Rights Act 1990 and Human Rights Act 1993
4.1 Is the legislation consistent with the New Zealand Bill of Rights Act 1990? If not, is it a justified limitation?
4.2 Is the legislation consistent with the Human Rights Act 1993? If not, is it a justified exception?

CHAPTER 5

Principles of the Treaty of Waitangi
5.1 Should there be consultation with Māori? If so, what form should the consultation take?
5.2 Is there a possibility of conflict between the principles of the Treaty and the legislation? If so, should uncertainty be avoided by including an appropriate provision in the legislation?
5.3 Are any Māori rights and interests affected by the legislation recognised at common law? If so, have they been clearly identified and addressed by the legislation?

CHAPTER 6

International obligations and standards
6.1 Are there any international obligations and standards relevant to the legislation?
6.2 If so, does the legislation properly implement those international obligations and standards?

CHAPTER 7

Relationship to existing law
7.1 (Replaced by Chapter 3a)
7.2 Has all other relevant legislation been considered?
7.3 Has the common law been considered?
7.4 Are transitional or savings provisions required?

CHAPTER 8

Creation of a new public power
8.1 If a new public power is proposed, is it needed, or are suitable powers available under existing law?
8.2 Who is the appropriate person to have the power?
8.3 Has a process for exercising the power been established?
8.4 Has the power and process been clearly stated?
8.5 What protections have been included for those who could be affected by the exercise of the power?

CHAPTER 9

Creation of a new public body
If a new public body is to be created, what should it be-
9.1 a Department of State?
9.2 a State enterprise?
9.3 an Office of Parliament?
9.4 a Crown entity?
9.5 Is it clear whether the Ombudsmen Act 1975, the Official Information Act 1982, and the Local Government Official Information and Meetings Act 1987 apply to the body?

CHAPTER 10

Delegation of legislative power
10.1 Is delegation appropriate, and if so with what limits?
10.2 What procedures should be specified to control the process of making the delegated legislation?
10.3 To whom should the delegation be made?
10.4 Is a provision for “deemed regulations” appropriate?
10.5 Is a provision for a “subdelegation” appropriate?
10.6 Is the use of “incorporation by reference” appropriate?
10.7 If the legislation includes a power to give policy directions, has the appropriate process been followed?

CHAPTER 10A

The exercise of delegated legislative power
10A.1 Have the terms of the empowering provision and the general law been complied with when making the delegated legislation?
10A.2 Is the proposed delegated legislation beyond the power conferred by the empowering provision?
10A.3 Does the proposed delegated legislation contain an unlawful subdelegation?
10A.4 Is the proposed delegated legislation invalid by reason of repugnancy to any other enactment?
10A.5 Is the proposed delegated legislation invalid by reason of uncertainty?
10A.6 Does the proposed delegated legislation infringe any of the grounds set out in Standing Order 382?

CHAPTER 11

Remedies
11.1 If remedies are required, which of the range of remedies is appropriate?
11.2 Should an existing civil remedy be applied?
11.3 Should new remedies or processes be established?
11.4 Should a special limitation period be established?

CHAPTER 12

Criminal offences
12.1 Is it necessary to create a new offence?
12.2 Has the appropriate mental element been determined?
12.3 Are appropriate defences available?
12.4 Is the offence a summary or indictable offence, and is this appropriate?
12.5 If the offence is an infringement offence, is this appropriate?
12.6 Has an appropriate range and level of penalties been determined?
12.7 What is the appropriate limitation period?

CHAPTER 13

Appeal and review
13.1 Should the legislation provide a right of appeal?
13.2 Have the proper criteria for choosing the appellate body been applied?
13.3 Have the proper criteria for choosing the type of appeal been applied?
13.4 Does the legislation specify the appropriate appellate procedure?
13.5 Does the legislation give sufficient guidance for the purposes of judicial review on the grounds of error of law?
13.6 Does the legislation give sufficient guidance for the purposes of judicial review on the grounds of breach of natural justice?
13.7 Does the legislation unduly restrict judicial review?

CHAPTER 14

Powers of entry and search
14.1 Are powers of entry and search necessary?
14.2 Are the powers conferred justified, and have appropriate safeguards been included?

CHAPTER 15

Powers to require and use personal information
15.1 Does the legislation affect privacy interests?
15.2 Has the Privacy Act 1993 been complied with?

CHAPTER 16

Cross-border issues
16.1 Are there cross-border issues that should be addressed?
16.2 What is the intended scope of the NZ legislative regime?
16.3 Are special rules required for civil claims with cross-border elements?
16.4 Are special rules required for criminal offences with cross-border elements?
16.5 Will any regulatory agency responsible for the regime be able to perform its role effectively in cross-border cases?
16.6 Should the legislation provide for recognition or enforcement of overseas decisions in New Zealand, or vice versa?

CHAPTER 17

Bills after introduction
17.1 Are the recommendations in the Departmental Report and in any supplementary report appropriate?
17.2 Have amendments to the bill in any government SOP been prepared in accordance with the guidelines?
17.3 Have any scope issues been anticipated and addressed?
17.4 Do the financial veto provisions of the Standing Orders apply?

CHAPTER 18

Alternative dispute resolution clauses in legislation
18.1 Which ADR process is most suitable?
18.2 What ADR principles need to be in the legislation?
18.3 Are the elements of the chosen legislative scheme workable and appropriate?