Statutory prerequisites for regulations

When submitting Cabinet committee papers that seek authorisation for regulations or Orders in Council to be submitted to the Executive Council, it is important to ensure that any statutory prerequisites are met before the paper is submitted.

What is a statutory prerequisite?

The empowering provisions of some Acts require that a certain procedural precondition (a statutory prerequisite) be met before regulations or an Order in Council can be made.  Examples of statutory prerequisites include:

• a statutory requirement that an Order in Council only be made after the Minister has consulted with specified persons or bodies;
• a statutory requirement that an Order in Council only be made if the agreement of particular persons or bodies have been obtained.

Sometimes the requirement is straightforward - for example, simply requiring the Minister to consult with another portfolio Minister.  In some cases the requirement is more complex, and meeting the requirement may not be wholly in the Minister's power - for example obtaining the concurrence of a consultative body.

How to establish if a statutory prerequisite applies?

Any statutory prerequisites will be identified in:

• the regulation-making provisions of the empowering Act;
• the enacting statement of an Order in Council drafted by the Parliamentary Counsel Office (found on the front page of the Order in Council, directly preceding the contents section). 

Referring to statutory prerequisites in Cabinet papers

If a statutory prerequisite is identified, it must be referred to in the compliance section of the Cabinet paper seeking authorisation to submit an item to the Executive Council.  The information in the compliance section must include:

• a description of the statutory prerequisite;
• a brief explanation of how the requirement was met;
• a sentence stating that the requirements have been met.

This information in the compliance section should also be reflected in the recommendations of the Cabinet paper, in the following format:

note that [describe the statutory prerequisite, eg: section x of the x Act requires that before recommending the making of an Order in Council under this section, the Minister must be satisfied that consultation with x has occurred];

note that [set out how the statutory prerequisite has been met, e.g. consultation with X has occurred];

note the advice of the Minister of X that this requirement has been met.

Related pages

Executive Council and the Governor-General

The structure of papers regarding items for the Executive Council

Accompanying documentation for items going to the Executive Council