Policy and law

Laws should give effect to the policy intent while upholding legal and constitutional principles. Careful policy analysis and early consideration of legislative design helps achieve this outcome. It’s important for the policy process to consider legal issues proactively, so that advice can include an informed assessment of whether legislative change is the right intervention for the problem or opportunity.

Policy practitioners often deal with policy issues that may result in changes to the law. This includes any changes to Acts of Parliament, regulations, and other legislative instruments, whether major or minor.

Policy practitioners therefore need to know:

• how to assess the impact and cost of any change to legislation or regulation
• how to spot common problems with proposals for changing the law
• when non-legislative alternatives are likely to be a more suitable way to resolve an issue
• when to talk to legal teams, the Parliamentary Counsel Office (PCO), and the Legislation Design and Advisory Committee (LDAC)
• how to work with legal teams on the detailed design of legislation, as well as the ‘big picture’ policy issues
• how to ensure Cabinet Paper recommendations create a smooth pathway between policy approval and drafting instructions
• how policy stewardship obligations apply to maintaining a cohesive set of laws when considering changes
• how to consider implementation aspects of changing the law, including operational implications for the government, transitional provisions, and outreach and education that might be needed as a result of shifting to a new legal framework.

Policy practitioners also need to be able to help their agencies meet stewardship obligations by identifying emerging gaps in the law, or areas where the current law is becoming out of date. PCO has an ongoing revision programme, and can help agencies identify longer-term reform needs.

Policy practitioners should consider the full spectrum of possible levers to achieve policy objectives below, to determine whether legal intervention is the right tool for the job.

Spectrum of levers for government intervention

Useful links

Regulatory governance and guidance

• Regulatory stewardship
  The Treasury is responsible for the strategic coordination of the regulatory management system. They provide information on impact analysis requirements for regulatory proposals and departmental disclosure statements.

• Crown Law Office
  The Public Law team within the Crown Law Office can support agencies by providing legal advice, including when legislative and regulatory reform options are being considered (e.g. clarifying the interpretation of existing provisions and the extent of legal risk to the Crown these present).

• Bill of Rights compliance reports
  The Ministry of Justice provides information about constitutional issues and human rights and Bill of Rights compliance reports to ensure policy proposals uphold New Zealand’s human rights obligations. Once a bill is drafted, agencies must also allow two weeks for the Ministry of Justice to vet compliance with the Bill of Rights Act 1990, prior to the bill being submitted to the Cabinet Legislation Committee (see Development and approval of bills).

• Instructing the Parliamentary Counsel Office
  PCO drafts and publishes legislation in New Zealand. They have comprehensive resources on instructing the Parliamentary Counsel Office, including a step by step guide on turning policy into law.

• Resources for regulators
  The Government Regulatory Practice Initiative (G-REG) has a set of resources for regulators, including short films, webinars, and research papers on improving regulatory practice across government.

Legislation Design and Advisory Committee

The role of the Legislation Design and Advisory Committee (LDAC) is to promote quality legislation. It does this in three ways:

1. By providing advice to departments early in the development of policy and legislation to resolve problems in the design of legislation and to identify potential public and constitutional law issues.
2. By setting standards through the publication of Guidelines (endorsed by Cabinet), and supplementary material to support the Guidelines.
3. By scrutinising Government Bills that come before Parliament.

The LDAC also runs seminars on legislative design. The LDAC is not concerned with the policy objectives of legislation; its focus is on good legislative practice and public law issues. The LDAC’s members include experienced government officials with backgrounds in law, policy and economics, experienced legal practitioners, academics, and regulators. The Parliamentary Counsel Office provides secretarial assistance.

• Legislation Design and Advisory Committee 101 webinar
  The LDAC's 28-minute webinar introduces the who, what, and why of the LDAC. It’s useful for people who would benefit from an introduction to the functions of the LDAC and how they can help. The webinar is informative and easy to watch. We encourage you to contact the LDAC secretariat if you have any questions about legislation design or engaging with LDAC.

• Legislation Guidelines (2021 edition)
  The Legislation Design and Advisory Committee is responsible for the Guidelines, which have been adopted by Cabinet as the key reference and guide to making good legislation. The Legislation Guidelines should be used when legislative or regulatory options are being considered. All Cabinet Papers seeking approval to introduce bills or submit regulations must indicate whether the LDAC Guidelines are complied with. It's best to use the LDAC Guidelines early in the policy process, so agencies can consider issues that may influence their recommendation on the comparative merits of law reform options.

Parliamentary scrutiny

• Standing Orders
  The Standing Orders set out the procedural rules for the New Zealand Parliament. Legislative procedure is covered in Chapter 5. Standing Orders are revised regularly, and the current edition was published in October 2020.

• Regulations Review
  The Regulations Review Committee scrutinises regulations and other delegated law. They can hear complaints on regulations. The Regulations Review Committee has the power to disallow regulations on grounds set out in the Standing Orders (see Standing Order 327).

Networks, events and other capability-building resources

• Conversations Between Regulatory and Policy Practitioners
  Recently G-REG have produced a new series of short films on how to make regulatory stewardship really work. This short film provides tips on how the policy design work underpinning regulatory change can be improved by early collaboration and conversations.

• In August 2021 the Policy Project hosted a Policy Forum for policy managers and principal advisors on the interface between Policy and Law. Three speakers presented on the following topics:
  1. Lifting the quality of policy advice on issues involving law reform
     Eliza Prestidge-Oldfield from Policy Project in the Department of the Prime Minister and Cabinet (see also the webinar below).
  2. Regulatory Stewardship: Legislative tools for the adaptation of regulatory systems
     Denny Kudrna from the Regulatory Stewardship Team at the Treasury.  
  3. The Legislation Design and Advisory Committee: what you need to know
     Matthew Green from the Legislation Design and Advisory Committee.

• Lifting the quality of policy advice on issues involving law reform
  If you're considering issues that may lead to a change in the law, this webinar by Eliza Prestidge Oldfield is for you.

• Providing for the Treaty of Waitangi in legislation and supporting policy design
  This guidance can help policy makers think critically about how to provide for the Treaty in legislative proposals and policy design. It guides policy practitioners in collaborating closely with Māori when considering options, both legislative and non-legislative.

• Competition Assessment Guidelines
  These guidelines by the Commerce Commission and MBIE can help you carry out an initial competition assessment to determine whether any restrictions on competition are necessary to achieve policy goals. The guidelines include a full version and a Quick Guide.

• Legislation Checklists
  In September and November 2022 Justice Goddard presented on ‘Making Laws That Work’ to a Policy Project Policy Forum and to Senior Leaders in the Public Service. The checklists will help agencies at the design phase of legislative development to reduce the risk of legislative failure. A word version of the checklists is also provided, if agencies need to adjust them to their own circumstances and requirements. GREG, the Government Regulatory Practice Initiative, recently hosted a webinar of Justice Goddard presenting on the topic to MBIE, which is now available at Making laws that work – Justice David Goddard