Certificate relating to legislation

The Bill provides that the Minister responsible for a Government Bill, and the chief executive of each public entity that will be responsible for administering the resulting Act immediately after it has been enacted, must each sign a written certificate containing certain information before the Bill is introduced and before commencement of the Bill’s third reading. An analogous obligation would apply to the MP responsible for a Member’s Bill. An obligation is also placed Minister and chief executive before regulations are made (Part 2, Clause 8).

Content of Certificate

The Bill provides that the certificate must contain, in the person’s opinion, (only the first item is necessary in the case of a chief executive if a Minister has already given a certificate)

• whether the legislation is compatible with the principles described below and if not compatible, in what respects;
• whether the incompatibility with the principles is justified to “the extent that is reasonable and can be demonstrably justified in a free and democratic society;
• the reasons for that justification or, if not, the reasons why the legislation is proceeding despite the lack of justification (Part 2, Clause 9).

Principles

The Bill sets out the principles which are applicable with the proviso that any incompatibility with the principles is justified to the extent that it is reasonable and can be demonstrably justified in a free and democratic society. The principles are expressed as follows.

Legislation should:

• under the heading “Rule of law”, be consistent with the following aspects of the rule of law-
  • the law should be clear and accessible,
  • the law should not adversely affect rights and liberties, or impose obligations, retrospectively,
  • every person is equal before the law,
  • issues of legal right and liability should be resolved by the application of law, rather than the exercise of administrative discretion;
• under the heading “Liberties”, not diminish a person's liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person;
• under the heading “Taking of property”, not take or impair, or authorise the taking or impairment of, property without the consent of the owner unless-
  • the taking or impairment is necessary in the public interest, and
  • full compensation for the taking or impairment is provided to the owner, and
  • that compensation is provided, to the extent practicable, by or on behalf of the persons who obtain the benefit of the taking or impairment;
• Under the heading “Taxes and charges”, not impose, or authorise the imposition of, a tax except by or under an Act and not impose, or authorise the imposition of, a charge for goods or services (including the exercise of a function or power) unless the amount of the charge is reasonable in relation to both-
  • the benefits that payers are likely to obtain from the goods or services, and
  • the costs of efficiently providing the goods or services;
• under the heading “Role of courts”, preserve the courts' role of authoritatively determining the meaning of legislation and if the legislation authorises a Minister, public entity, or public official to make decisions that may adversely affect any liberty, freedom, or right of a kind referred to above under the heading “Liberties”-
  • provide a right of appeal on the merits against those decisions to a court or other independent bod, and
  • state appropriate criteria for making those decisions;
• under the heading “Good law-making”, not be made unless, to the extent practicable, the persons likely to be affected by the legislation have been consulted and not be made (or, in the case of an Act, not be introduced to the House of Representatives) unless there has been a careful evaluation of—
  • the issue concerned, and
  • the effectiveness of any relevant existing legislation and common law, and
  • whether the public interest requires that the issue be addressed, and
  • any options (including non-legislative options) that are reasonably available for addressing the issue, and
  • who is likely to benefit, and who is likely to suffer a detriment, from the legislation; and
  • all potential adverse consequences of the legislation (including any potential legal liability of the Crown or any other person) that are reasonably foreseeable;

produce benefits that outweigh the costs of the legislation to the public or persons;

be the most effective, efficient, and proportionate response to the issue concerned that is available (Part 2, Clause 7).

Application of the principles

The Bill provides that wherever an enactment can be given a meaning that is compatible with the principles that meaning is to be preferred to other meanings. A Court (the High Court, Court of Appeal or Supreme Court) may make declarations of incompatibility in proceedings relating to an application for such a declaration of incompatibility, under the Declaratory Judgements Act 1908 or judicial review proceedings. But in respect of legislation made before the date the Bill comes into force, only after the tenth anniversary of that date. Such a declaration does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given and is not binding on the party to the proceedings. No Court may hold any provision of the legislation to be impliedly repealed or revoked or to be in any way invalid or ineffective or decline to apply any provision of the legislation by reason only that the provision is incompatible with any of the principles or that any provision of the Bill has not been complied with (Part 2, Clauses 11-14).

Copyright: © NZ Parliamentary Library, 2011

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