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Early discussion about the choice of legislative vehicles and the methods of
complying with the Guidelines would improve the quality of legislation a great
deal. It is often too late once the measure has been drafted.
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Ongoing discussions about how this can be achieved have been commenced
between the Law Commission, the Ministry of Justice, the Department of Prime
Minister and Cabinet, Treasury, Chief Parliamentary Counsel and the Solicitor
General. The desire is to find better ways of defining and analysing the optional
architectures available for Government Bills, how they fit in to the rest of the
statute book and what the balance will be between primary and delegated
legislation.
Post-legislative scrutiny
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As I have made clear in the earlier part of this lecture, we have been adding to the
bulk of the law on a continuing basis. What we do not do is to stop and conduct
an inquiry into the effects of what we have done. There are murmurings now that
perhaps some mechanisms should be developed to look rigorously at the effect of
legislation that has been passed and to ensure that it achieved the objectives upon
which it was based and did not achieve unforeseen consequences of a deleterious
kind. It seems a sound idea to do this examination before rushing in with
amendments as occurs so often in New Zealand. The English Law Commission
has recently published a Discussion Paper on post-legislative scrutiny.41
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The case in favour of carrying out some post-legislative scrutiny is put at 6.2 of
the paper.
The primary reason which has been recurrently suggested to us is that legislation
should be reviewed after it has been brought into force to see whether it is working
out in practice as intended and if not to discover why and to address how any
problems can be remedied quickly and cost-effectively. This driver for post-
legislative scrutiny is based on a concern that every year a huge and increasing
amount of legislation is poured onto the statute book, most of which is not
thoroughly digested. Much of this generates further regulation either in the form of
secondary legislation or in the form of codes and guidance. There may also have
been a number of amendments introduced with little time for scrutiny during the
41
Law Commission Post Legislative Scrutiny (consultation paper no 178, London, 2006).
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