Bills undergo varying periods of gestation before they come before the House. The idea for legislation on a particular topic may originate in party meetings and result in a commitment being included in a party’s election manifesto. An organisation set up to look after the professional interests of its members may lobby the Government successfully for a bill which helps the members in some way. The Law Commission or a committee of inquiry may recommend legislative changes in light of its investigations. A department or statutory body may suggest legislation arising from its experience in administering policies or programmes. In these, in combinations of these and in other ways, an idea which eventually results in legislation may be started.
Reporting on inconsistencies
The Attorney-General is required to bring to the House’s attention any provision in a bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights Act. In the case of a Government bill this must be done on the introduction of the bill and, in any other case, as soon as practicable after the introduction of the bill.
A distinction is drawn between Government bills and other bills as to the time within which the Attorney-General must fulfil this duty because the Attorney-General, as a Minister, will have access to drafts of Government bills well before they are introduced and so is in a position to perform this task as soon as the bill is introduced. But in respect of other bills the Attorney-General will receive no more advance notice than any other member and a longer period for consideration of their provisions is needed.
In order to enable the Attorney-General to carry out this reporting function and also to ensure that, as far as possible, Government bills as introduced do not contain provisions inconsistent with the Bill of Rights Act, submissions to Cabinet committees on policy proposals and bills must include a statement on the consistency of the proposal or legislation with the Act.
(A similar statement is required addressing consistency with the Human Rights Act 1993.)
In addition, as part of the preparation of legislation, an examination of each draft Government bill is undertaken to determine if its provisions are consistent with the Bill of Rights Act.
The examination is carried out by the Ministry of Justice or, where a bill is to be introduced by the Minister of Justice, by the Crown Law Office. For this purpose the draft legislation must be provided to the ministry or the office at least two weeks before the meeting of Cabinet’s Legislation Committee at which it is to be considered.
It is incumbent on the department which is promoting a bill to keep the Ministry of Justice informed of all background facts that are relevant to a judgment being made on consistency with the Bill of Rights Act. Thus a department has been criticised subsequently when it was learnt that it had failed to inform the ministry that legal proceedings had been issued on a matter dealt with in the draft bill.
Advice on a bill’s consistency is formally tendered to the Attorney-General by the Ministry of Justice or the Crown Law Office. In the case of any difference of opinion between the Ministry of Justice and the Crown Law Office, the Solicitor-General may provide separate advice.
Nevertheless, regardless of the views of officials the legal responsibility for reporting an inconsistency with the Bill of Rights rests with the Attorney-General.
The results of the officials’ examination are also reported to the Cabinet, which takes the political decision as to whether to introduce legislation that contains a provision inconsistent with the Bill of Rights Act.
Following protests that the advice from the departments on which the Attorney-General bases the decision whether to report an inconsistency was not made public
all such advice is now posted on the Ministry of Justice’s website once the bill has received its first reading.
In considering whether a bill contains provisions inconsistent with the Bill of Rights Act, the Attorney-General takes account of the balancing provision in the Act. This section contemplates that the rights and freedoms set out in the Act are subject to reasonable and justifiable limitations.
Only if the Attorney-General considers that a provision cannot be justified under this section does the Attorney-General report that a provision is inconsistent with the Bill of Rights Act.
The obligation to report to the House is a safeguard designed to alert members to legislation which may give rise to an inconsistency with the Bill of Rights Act and to enable them to debate the proposal on that basis.
It has been aptly described as a “watchdog” provision.
But the Attorney-General’s obligation to report or to decide not to report is part of a parliamentary proceeding and cannot be reviewed by a court.
Nor will the Speaker entertain any question of whether a bill is consistent with the Bill of Rights Act. The requirement to report to the House is a matter solely for the Attorney-General and it is for the Attorney-General, not the Speaker, to judge whether the occasion has arisen for the House’s attention to be drawn to an apparent inconsistency.
Ultimately, it is for the House itself to determine whether it believes that a bill is inconsistent with the provisions of the Bill of Rights Act (on which it may reach a different conclusion to the Attorney-General) and, if it does consider that there is an inconsistency, that it nevertheless wishes to pass the bill. Indeed, when the House passes a bill in respect of which there has been a certification from the Attorney-General, it may be difficult to determine whether this is because the House or the select committee which considered the bill preferred a different legal opinion to the Attorney-General, or received evidence that put a new perspective on the Bill of Rights Act point, or has decided to go ahead with the bill, conflict or not.
Parliamentary Counsel Office
Anyone can draft a bill for introduction but, in practice, as far as Government bills are concerned, bills (apart from tax bills) are drafted in the Parliamentary Counsel Office by specialist law drafters.
Because of the volume of legislation introduced into the House, the Government has on occasion employed private drafting services,
but even in these cases a parliamentary counsel will review the bill prior to introduction to the House. A parliamentary counsel attends meetings of the select committee when it is deliberating on a bill for which the parliamentary counsel is responsible. The drafting of the amendments to the bill which the committee proposes to include in its report is undertaken by the parliamentary counsel. Parliamentary counsel also draft all amendments to a bill proposed by the Government at the committee of the whole House stage. They do not normally draft amendments for other members though they may do this when authorised to do so by the Attorney-General. This happens when a bill is to be considered as a conscience issue and members’ amendments have a high prospect of being carried or when it becomes apparent that a Member’s bill is likely to be passed.
The Parliamentary Counsel Office has a statutory responsibility to examine every local bill that is introduced into the House,
but in practice promoters of local bills and private bills consult the office before such bills are introduced in any case.
Other drafters
Tax legislation is treated differently from other Government bills. Another agency can be authorised by Order in Council to draft tax bills
and in 1995 the Inland Revenue Department was authorised to draft such bills.
Consequently, in respect of tax legislation, the Inland Revenue Department performs similar functions to those carried out by the Parliamentary Counsel Office in respect of Government bills generally. A select committee has recommended that this function be transferred back to the Parliamentary Counsel Office.
For Members’ bills, members may obtain drafting assistance from the Office of the Clerk, whose officers are familiar with drafting forms, or may obtain private assistance. The Parliamentary Counsel Office may be required to report upon such bills to the Prime Minister or the Attorney-General.
Otherwise that office becomes involved with Members’ bills only if expressly authorised to do so by the Attorney-General. As with members’ amendments to Government bills, this would occur only with Members’ bills that were to proceed as conscience issues or otherwise with general support and which therefore had a likelihood of being passed into law. An increasing trend has been detected for the Government to direct that parliamentary counsel assistance be made available for Members’ bills that gain political support.
When a local authority decides that it wishes to promote local legislation, its first task is to draft the bill, for the bill must be available for inspection from the moment the first formal step is taken in respect of it. The drafting of the bill is a matter for the promoter to arrange. The Parliamentary Counsel Office does not normally draft local bills for local authorities, but the office may comment on and revise drafts submitted to it.
While there is provision for fees to be charged for this service, no regulations prescribing such fees have been made.
Before initiating any proceedings, the promoter of a local bill should, after consulting parliamentary counsel, have finalised the draft of the bill to be introduced. The Parliamentary Counsel Office has a statutory duty to examine every local bill that is introduced into the House and to report to the Prime Minister or the Attorney-General whether the rights of the Crown are affected by it and whether there are any other matters connected with the bill that it considers should be brought to their attention.
The responsibility for the drafting of a private bill lies with the promoter as it does for a local bill, but the Parliamentary Counsel Office will examine a draft of a private bill and offer its comments.
Drafting practice
Drafting practice must comply with any statutory or Standing Orders requirements governing the way in which a bill must be prepared. (See Chapter 25 for a discussion of these rules.) The Legislation Advisory Committee has recommended drafting practices to be followed in respect of particular bills and types of provision. Its guidelines have been endorsed by the Government as embodying good practice to follow.
The Regulations Review Committee has (in consultation with the Parliamentary Counsel Office) suggested standard clauses for use where a bill proposes to incorporate material by reference.
But drafting practice is largely determined by the practices followed by the Parliamentary Counsel Office. These vary from time to time as a result of conscious decisions that are formally adopted
and as a result of individual drafting decisions being absorbed into general practice. The Parliamentary Counsel Office seeks to reflect these practices in its drafting manual. Statute authorises the Chief Parliamentary Counsel to reprint Acts of Parliament in formats and styles that accord with the current drafting practice that is being followed in New Zealand.
Member in charge of the bill
In the case of all bills, the name of the member who is to introduce and sponsor the bill during its passage through the House is printed at the top of the front page of the bill. This is the member in charge of the bill.
Government bills
In the case of a Government bill the member in charge is the Minister who the Government determines will introduce the bill. An Associate Minister who holds a ministerial warrant in his or her own right, may introduce a Government bill.
In the Minister’s absence from the House at any stage of the bill’s passage, any other Minister may act on the Minister’s behalf.
If ministerial portfolios change (whether as a result of a reshuffle, a dismissal or a resignation or, where a bill is reinstated, following a general election) the new Minister automatically becomes the Minister in charge of the bill and any subsequent reprint of the bill will show the new Minister’s name. Even without a reshuffle the Government can transfer the responsibility of acting as Minister in charge of a bill to another Minister by advising the Clerk accordingly.
Members’ bills
The member who introduces a Member’s bill cannot be a Minister. A Parliamentary Under-Secretary may introduce a Member’s bill.
If the member in charge of a Member’s bill is appointed to ministerial office, the responsibilities of the member in charge of the bill must be transferred to a non-ministerial member (with that member’s agreement), otherwise the bill must be withdrawn. A Member’s bill cannot remain in the name of a Minister. Transfer of a bill is effected by advising the Clerk. If a member in charge is defeated or retires from Parliament and the bill is reinstated, this does not affect the ability of any select committee to which it has been referred to continue to consider the bill. But when the bill is set down for second reading it is necessary for a member to take charge of it if it is to proceed. In practice, consultations are held with members of the party of the former member to establish who might take charge of it. There is no presumption that the member’s successor in an electorate seat will take charge of the bill, since Members’ bills have no necessary connection with an electorate that the member represents.
Local bills
A local authority is entitled to ask any member to take charge of a local bill. Normally the member of Parliament for the locality involved is asked to take charge (whether a Minister or not). In larger local authority districts there may be more than one member of Parliament. In that case, the member for the centre of the district or the member for the area in which the promoter has its offices is usually selected, but there is no hard-and-fast rule. The fact that a member agrees to take charge of a local bill does not mean that the member supports the bill.
If the member in charge of a local bill ceases to be a member of Parliament, the member succeeding that member as the member for that electoral district is invited to take charge of the bill, since it is presumed that there is a territorial connection between the member in charge and the locality dealt with by the bill. If the new member does not wish to take charge of the bill, another member can do so.
Private bills
The promoter of a private bill must obtain the agreement of a member to introduce the bill. A Minister may introduce a private bill.
The promoter is entitled to ask any member to take charge of a private bill, and the fact that the member agrees to this does not imply that the member is necessarily in favour of the bill.
Normally, the promoter will ask the local member, where the promoter is an individual, or the local member for the district in which the company’s or trust’s head office is situated, where the promoter is a corporation. Where a private bill relates to land, the appropriate member to take charge of the bill is the member for the area in which the land is situated and not, for instance, the member for the company’s or trust’s head office, which might be in an entirely different centre. In this case, if the member in charge ceases to be a member of Parliament, the member succeeding the member as the member for the electoral district is invited to take charge of the bill since there is a territorial connection between the member in charge and the subject matter of the bill. In other cases the promoter will be asked to nominate a new member to take charge of the bill.
Promoter
Local bills and private bills differ from Government bills and Members’ bills in that in respect of the former types an organisation or person outside the House initiates the bill and takes formal responsibility for compliance with the House’s rules relating to its passage. Although such bills must be introduced into the House by a sponsoring member, these outside bodies retain an “ownership” of the bills even after introduction for they may at any time withdraw their bills by advising the Speaker in writing.
Such an organisation or person is known as the promoter of the bill. If there is no promoter, there can be no local or private bill.
A local bill is promoted only by a local authority.
Each local bill must have a local authority promoter in order to be classified as a local bill. (See Chapter 25 for local authorities which may promote a local bill.)
Occasionally a local authority promoter may go out of existence after a local bill has been introduced or after all the preliminary steps have been taken in the promotion of the bill but before it is introduced.
In such cases the bill can proceed; it is for the select committee to which the bill is referred to recommend to the House whether it should be passed, and for the House to decide on the matter. Where the demise of a local authority is in consequence of a local government reorganisation there will usually be an identifiable successor to the local authority and the new authority can decide whether it wishes to proceed with the bill.
The promoter of a private bill is a person or body of persons (whether incorporated or not) who stand to benefit from the change in the law that is proposed in the legislation.
No one can be the promoter of legislation as the agent of another person, though an agent can act on behalf of a promoter in taking steps required by the Standing Orders and in executing the requisite documents. But all such actions must be taken in the name of the promoter, the person who is directly interested in the passage of the bill. The Standing Orders require the identification of the person who is the promoter at several stages.
In practice, promoters often do engage agents, such as solicitors, to arrange for the steps required to be taken in the promotion of private legislation to be attended to on their behalf.
A corporation incorporated outside New Zealand has promoted a private bill.
Preliminary procedures for private and local bills
A further way in which local bills and private bills differ from Government bills and Members’ bills is that an elaborate set of procedures is prescribed to be followed by promoters before such types of bills may be introduced into the House. These steps are designed to alert interested persons, and members themselves who may be particularly concerned, to the fact of the promotion of the bill. They are then enabled to make early representations to the promoter and other members or to prepare submissions for the select committee that will eventually consider the bill. Compliance with these preliminary procedures is a condition for the grant of the legislative privilege sought by the local authority or other person who is promoting the bill.
Preamble for private bills
A private bill must comply with a requirement as to its form which other types of bills are not required to meet.
The bill has to contain a preamble stating the facts on which it is founded and the circumstances which have necessitated it. An important requirement is that the preamble must deal expressly with a point which will be prominent in the consideration of the committee to which the bill is referred: that is, whether its objects could be attained otherwise than by legislation. If they could be, the preamble must state why legislation is preferred.
The preamble deals with this question only if the promoter in the petition for the bill has stated that there is an alternative remedy to legislation. If there is no real alternative, the point is not dealt with in the preamble. However, the promoter’s failure to identify an alternative means of proceeding is subject to challenge, particularly when the bill is before the select committee. If there is a real alternative, and the promoter has not identified it and addressed it in the preamble, the committee may find that the preamble has not been proved and this will prejudice the chances of the bill proceeding.
Form of notices
The preliminary procedures for private bills and local bills require the promoter of the bill to give written notice of the intention to introduce the bill before it can be introduced.
This notice must be given on a number of occasions. Each notice is to be headed with the title of the proposed Act of Parliament.
The notice must then go on to state that the promoter intends to promote the bill, describe its objects, give a postal address for the promoter or the promoter’s solicitor or agent to which communications may be sent, and specify the address of the promoter at which the bill may be inspected, the address of the District Court at which it may be inspected and the dates during which it will be available for inspection.
The description of the objects of the bill in the notices of intention to introduce it limits the scope of any amendments that may be recommended or made to the bill as it is passing through the House.
Advertising
The promoter must advertise the notice of intention to introduce the bill in various newspapers at least once in each of two consecutive calendar weeks.
For a private bill this must be in a daily newspaper circulating in each of the cities of Auckland, Hamilton, Wellington, Christchurch and Dunedin.
In the cases of Auckland and Hamilton this can be the same newspaper. Where a private bill affects land or any interest in land, the notice must also be advertised in a daily newspaper circulating in the locality in which the land is situated, if that locality is outside the main centres.
For a local bill the notice must be advertised in a daily newspaper circulating in the local authority district.
If no daily newspaper circulates in the locality in which the land affected by a private bill is situated or in the local authority district, the notice may be advertised in a daily newspaper circulating in an adjoining district or affixed to a public noticeboard.
Delivery of notices to persons with a direct interest
As well as placing general advertisements, the promoter is required to serve the notice on persons who, to the promoter’s knowledge, have a direct interest in the subject matter of the bill or in the exercise of any power proposed to be given by the bill.
This could be a wide and onerous requirement if it was taken to apply to all interests generally. For example, in the case of a bill promoted by a company, its shareholders, creditors and employees could be said to have an “interest” in any actions it takes. However, the requirement of a “direct” interest is taken to imply an interest of a more restricted nature than this, such as a legal interest in property dealt with under the bill. Owners, mortgagees, lessees and occupiers of land or buildings transferred or otherwise dealt with by the bill must have notices served on them, but this is not required for persons with more remote or indefinite interests than these. Other types of interests that must be recognised by the service of notices are those concerned with family relationships which could be altered by legislation, such as an adoption or a marriage bill.
Delivery of notices to specified parties
Notice must also be given to a number of office-holders in certain cases.
In the case of the bill affecting the public revenues or the rights or prerogatives of the Crown, notice must be served on the Secretary to the Treasury and the Solicitor-General.
Where it is proposed to modify, restrict, repeal or amend the provisions of any general Act of Parliament, notice must be given to the chief executive of any government department or agency charged with the administration of the Act.
A private bill can propose to repeal or amend a general Act incidentally to achieving its objects,
but most private bills seek to create exceptions to general Acts rather than to amend them. The Government department charged with administering the legislation which would be affected in this way must be specifically apprised of the promotion of the bill by being served a notice of it. The appropriate department on which to serve a notice can be ascertained from the note printed at the foot of each published Act of Parliament which identifies the department charged with administering the Act.
A notice must be given to the Commissioner of Inland Revenue in the case of a bill affecting liability under an Inland Revenue Act.
An Inland Revenue Act means: the Estate and Gift Duties Act 1968, the Stamp and Cheque Duties Act 1971, the Gaming Duties Act 1971, the Goods and Services Tax Act 1985, the Land Tax Abolition Act 1990, the Child Support Act 1991, the Student Loan Scheme Act 1992, the Estate Duty Abolition Act 1993, the Income Tax Act 1994, the Tax Administration Act 1994, and the Taxation Review Authorities Act 1994.
It also includes the Income Tax Act 2004. Notice must also be given to the chief executive of the New Zealand Customs Service where liability to excise duty or a related duty may be affected.
In the case of a bill alienating or disposing of Crown land or proposing to exchange Crown land for other land, notice must be given to the Commissioner of Crown Lands.
Where land administered as a reserve, national park, conservation area or otherwise for conservation purposes is affected, notice must be given to the chief executive of the relevant department
and to the Registrar-General of Land if the bill relates to the transfer of title to land.
Notice must be given to the Solicitor-General in the case of a bill affecting a charitable trust
and to the relevant registering authority if the incorporation or registration of any body is affected by the bill.
Notices served on members
As well as the general advertising notices outlined above, the promoter must serve specific notice of the intention to promote a local bill on all members of Parliament for general or Māori electoral districts whose constituents may be affected by the provisions of the bill.
This requirement does not extend to list members as, although they may live in a locality affected by the bill, their mandate is not tied to a particular district. The chief executive of the local authority must certify that such members (by name) have been given notice. The certification must specify the date on which notice was given and be signed and dated.
How notice is given
A notice to a person with a direct interest, to a specified person, or to a member of Parliament may be given in a number of ways.
It may be delivered to the person or to the office or department or agency concerned.
It may be posted or delivered by courier to the person’s last known address or address for service or to the address of the department or agency concerned or by delivering it to a document exchange which the addressee uses.
Finally, it may be communicated electronically (by facsimile or electronic mail).
The notice may be included with another document provided that it is given reasonable prominence.
Deposit and inspection
The promoter is obliged to make a copy of the bill available for inspection at a District Court and at the promoter’s own premises. This must be done at the time of the appearance of the first notice advertising the intention to promote the bill.
This means on the day of the advertisement or on the next working day.
A private bill must be deposited at the District Court in or nearest to the locality in which the promoter’s residence or registered office is situated.
In addition, if the bill affects land or any interest in land, it must be deposited in the District Court nearest to the locality in which the land is situated (if this is different from the promoter’s residence or registered office).
In the case of a local bill the District Court in or nearest to the local authority district concerned is the place of deposit.
Another copy of the bill must be deposited in the office of the promoter or (if a private bill) in the office of the promoter’s solicitor or agent.
In the case of a local bill, the bill must also be deposited in a public library or service centre.
A bill which has been deposited must remain available for public inspection during normal business hours, without fee, for 15 working days.
This excludes weekends, public holidays (national, and provincial in the locality to which the bill relates) and also excludes the period 25 December to 15 January.
At the end of the period of deposit the copy lodged in the court must be certified by the judge, the registrar or the deputy registrar of the court and the copy lodged at the promoter’s or other office must be certified by the promoter, the promoter’s solicitor or agent or the promoter’s chief executive.
The certificate is written directly on to the copy of the bill, not given separately from it. It must state the first and last whole days on which the copy was available for public inspection. The person certifying it signs over that person’s designation and it is dated.
The bill that is subsequently introduced into the House may differ from the copies that were made available for inspection only in respect of immaterial corrections such as of misprints or spelling mistakes or matters of form. If there is a material difference, the copy which was made available for inspection was not a copy at all and the Standing Orders have not been complied with. Whether the copy was a true copy ultimately is determined by the select committee when it considers the bill.
Bills dealing with land
There are special requirements regarding bills which propose to take power to deal with any land. In these cases the copies of the bills made available for inspection must be accompanied by a description of the land (this may also be contained in a schedule in the bill) and a true copy of the plan of the land. The description and plan must be certified as correct by the chief executive of the department responsible for the administration of the Cadastral Survey Act 2002 (Land Information New Zealand) or any person to whom the chief executive delegates the power.
The plans are required to be drawn in a form specified by rules made under the Act. The plan must be lodged with the relevant Land Information New Zealand office and endorsed by the chief executive as having been approved for parliamentary purposes.
The officials of the court and of the promoter must certify that these documents have been available for inspection along with the bill.
The description and the plan circumscribe the extent of land that may be dealt with by the bill. After it is introduced it is not possible for the bill to be amended to include land not encompassed within the description, although the legal description of the land contained in the bill may be corrected if it is found not to accord with the lodged description and plan. If the bill is subsequently amended to restrict the area of land dealt with in the bill, it is not necessary to lodge a further plan, though the select committee is likely to require further certification from the chief executive of Land Information New Zealand before it agrees to amend the legal description contained in the bill in any way.
A true copy of the plan is not required in three circumstances—
•where the land to be dealt with is wholly comprised in any certificate of title issued under the Land Transfer Act 1952 or any computer register created under that Act
•where the land has been previously dealt with and described in a statute, ordinance, proclamation, declaration, notice or Order in Council
•where the land to be dealt with is wholly comprised in a separate lot or other surveyed subdivision shown on a plan deposited in the relevant Land Information New Zealand office or lodged in the office of the chief executive.
However, even in these latter cases a description of the land to be dealt with, certified as correct by the chief surveyor, must be made available for inspection along with the bill.
Fees
A fee of $2,000 (including goods and services tax) is payable by the promoters of all bills. It must accompany the documents forwarded to the Clerk.
The fee for a private bill is paid to the Speaker. It is held in a separate private bills’ fees account administered in the Speaker’s office and may be applied for such parliamentary purposes as the Speaker directs. The fee for a local bill is paid to the Clerk of the House. It is applied to defray the general administrative expenses incurred in respect of the promotion of local bills.
The fee must be paid before the Standing Orders can be certified as having been complied with. No fee is payable if the Standing Orders have not been complied with and the bill does not proceed to be introduced. The fee for a private bill may be refunded in whole or in part on the ground of hardship where the House so directs on the recommendation of the committee which considers the bill. In such a case the Speaker refunds the fee.
Petition for private bill
A private bill is initiated for introduction into the House by a petition.
This is the only survival of the involvement of petitions, which formed the basis of some of the earliest statutes, in the passage of legislation. However, their involvement in private legislation is by way of a request made to the House and not, as was practised in the early English Parliaments, by way of a request made by the House to the Crown.
The promoter’s petition is a request to the House that it introduce the legislation that the promoter wishes to see enacted. For this purpose the promoter must set out a statement of the reasons for the introduction of the bill and the objects it is intended to achieve. These reasons and objects should accord with the circumstances recounted in the bill’s preamble. The petition must deal with why legislation is the preferred option if there is an alternative to legislation. The promoter also certifies in the petition that the appropriate advertising has been undertaken and notices given. A specimen form of petition is set out in Appendix C to the Standing Orders. The petition must in general conform to that specimen.
Declaration for local bill
Before a local bill can be introduced the promoter must make a declaration to the House.
The declaration requests that the bill be introduced. It must set out the reasons for the bill and the objects it is intended to achieve. If those objects could be attained otherwise than by legislation the promoter must state why legislation is preferred. The promoter certifies in the declaration that the advertising and notices required to be given by the Standing Orders have been undertaken. A specimen declaration is set out in Appendix C to the Standing Orders. The declaration must in general conform to that specimen.
Examination by the Clerk
Each deposited copy of the bill, together with deposited copies of descriptions of land affected, as certified by the District Court and the promoter, along with copies of notices and other documents required by the Standing Orders must be forwarded to the Clerk.
These supporting documents are attached to the petition for a private bill or the declaration for a local bill, as the case may be.
The documentation must be lodged with the Clerk within six months of the first publication of the notice of the bill in order to remain effective.
Thus promoters have six months from taking their first formal step to promote a bill to complete the preliminary procedures.
The Clerk examines the bill, petition or declaration, and supporting documentation to ascertain whether the Standing Orders have been complied with.
The examination of the petition or declaration and associated documents by the Clerk culminates in the Clerk endorsing the petition or declaration “Standing Orders complied with”, if that is the case, and signing and dating the endorsement.
If on the other hand, in the Clerk’s opinion the Standing Orders have not been complied with, the petition or declaration and the fee are returned to the promoter.
It is not the Clerk’s function, in making the examination, to determine whether the bill is actually a private bill or a local bill. However, in discussions with the promoter any doubts on the proper classification of the bill will be raised in an endeavour to settle this before the promoter takes steps to promote the bill. But if, nevertheless, after introduction, a question arises as to a bill’s classification, the Speaker can determine it. The Clerk’s certification that the Standing Orders have been complied with refers only to the procedural steps for advertising, inspecting, giving notice, paying fees and lodging documents; it is not a certification that the bill is a private bill or a local bill.
Once a petition for a private bill or a declaration in respect of a local bill has been endorsed by the Clerk as complying with the Standing Orders the petition may be presented to the House, in the case of a private bill,
and notice may be given for the introduction of the bill, in the case of a local bill.
Before 10 February 2004 (when the preliminary procedures for local bills were substantially amended), the Local Government and Environment Committee, rather than the Clerk of the House, determined whether the Standing Orders had been complied with. This examination took place after the bill had been introduced. In respect of local bills introduced before that date, this remains the case by sessional order.
Inclusion of clauses in a Local Legislation Bill
Local matters may be included in a Local Legislation Bill by a local authority applying to the Minister of Local Government for preliminary consideration and provisional approval of a clause or clauses.
The promoter must first give a copy of the proposed provision to all members of Parliament for general or Māori electoral districts whose constituents may be, or are likely to be, affected by it, advising them in writing of the intention to apply for its inclusion in a Local Legislation Bill. The local authority must forward a draft of such clause or clauses to the Minister, with a certificate certifying that such members have been advised of the intention to apply to have it included in a Local Legislation Bill. The certificate must specify the date on which notice was given and be signed by the authority’s chief executive.
Copies of the provisions and the required notices are served by personal delivery, letter post, courier, document exchange used by the member or by facsimile or electronic mail.
The Minister may set a deadline by which such applications must be received where a bill is being prepared. Objections to the inclusion of provisions in a Local Legislation Bill on any grounds may be lodged with the Minister. Any objections received by the Minister in respect of a clause subsequently included in a Local Legislation Bill must be transmitted to the select committee considering the bill.
The bill is drafted in the normal way as a Government bill, consisting of clauses of which the Minister has provisionally approved and other clauses repealing any spent Local Legislation Act or spent provision in such an Act.
Further clauses provisionally approved by the Minister after a Local Legislation Bill has been introduced may be added to the bill by being placed on a supplementary order paper and referred by the Minister to the select committee on the bill.
This is an exception to the general rule that Ministers, or indeed any persons or bodies other than the House, may not refer matters directly to a select committee. The committee usually reports the supplementary order paper back to the House in the same report as its report on the bill. When the committee has reported the bill back to the House, it is no longer competent for the Minister to refer a supplementary order paper containing amendments to the bill to the select committee.
