DAVID MARRIOT FROM QUENTIN HIX LEGAL WRITES ON WHO MAKES LAW HOW?
Most readers will know the answer to this question – our elected politicians in parliament and our judges make law but how? The answer to this question is large but quite interesting (to some). This piece gives a brief overview of law making in parliament. I will write later about how judges make law.
Let’s take a recent example of law making. A few weeks back parliament made regulations imposing requirements on landlords and tenants for smoke alarms. The regulations are named “Smoke Alarms and Insulation Regulations 2015”. For those who don’t know, from 1 July 2016 landlords are compelled to fit smoke alarms in their rental properties. Our politicians had identified problems with smoke alarms in residential tenancies. Landlords were perceived to be failing to install adequate smoke alarms in the right places. So, now, landlords must install “qualifying smoke alarms” in their rental properties and those smoke alarms must be installed in the right places – such as sleeping spaces and within three metres of the entrance to the sleeping space.
The processes in government that precede the making of law have persisted for many years and may be little understood by the general population. The process involves a range of government officials, legal drafters, committees and, of course, the public. The public is encouraged to involve themselves in the process, particularly at the select committee stage, but few people know about it and relatively few get involved. Usually, the process for making law begins with the minister responsible for the relevant subject area. The minister instructs his or her officials. The officials research the relevant area in detail. They then make recommendations to the minister. The officials instruct the parliamentary council office to draft the legislation to meet the perceived need. The draft law is sent out for public “consultation”. Changes might be made taking account of responses received. The draft law is then sent to the select committee – being a cross section of politicians who, often, will have an interest in the relevant area. The select committee returns the bill, with suggested amendments, to the minister. If the minister is satisfied he or she will table the bill in parliament. The bill is then debated in parliament in three readings. If the bill is passed, it has become law. The new law will, usually, have a commencement date.
The process involves the work and thoughts of numerous people over, usually, a lengthy period. Readers should know that they are able to review and make comment or submission on legislation before it becomes law. Typically, the opportunity to make your views known comes while the draft bill is before the relevant committee of parliament. The parliamentary counsel office harbours a significant number of specialist drafters. Their job is to convert the government policy into law that implements the policy.
Readers interested in the production of legislation should go to the PCO website www.legislation.govt.nz\howitworks.aspx. PCO has a bunch of lawyers who do nothing but draft laws and regulations. The PCO website provides free public access and up-to-date versions of New Zealand Acts and proposed Acts (Bills).
Like everything else these days’ legislation is published “online”. Printed legislation is available on the website. Usefully, the PCO website includes a section headed “keeping up-to-date with the law – webfeeds” – readers can find webfeeds for up-to-date changes to the law and can also find “alerts” allowing the public to keep up-to-date with intended legislation. The parliament counsel office does not provide advice to the public about the interpretation or operation of legislation. Instead, you can contact the government agency who administers the legislation if you wish to know more about a particular statutory proposal.
The idea, which has been prevalent for many years, is that the public should have a say in the creation of new or amending laws.
In later columns I will talk about the other way that law is made – that is, by judges. There is a vast body of writing on this subject.