Resources

How rule-making works

Regulatory context

Regulatory legislation should be set:

• if government intervention is warranted
• to encourage positive behaviour and safety
• in a way that is proportional and responsive to risk.

Regulation encompasses a range of instruments used by government to:

• influence or control the way people as individuals or groups behave
• achieve a range of economic, social, safety and environmental policy objectives.

Traditionally, ‘regulation’ is seen as creating formal legal requirements by government, for example, by way of acts, regulations and rules.

Regulatory tools

A broader view of regulation takes in non-legislative policy tools, for example:

• information campaigns
• education
• persuasion
• self-regulation
• quasi-regulation (codes of practice, guidelines, etc that can also influence behaviour).

Regulatory stewardship

Government agencies with responsibilities for administering regulatory regimes are to:

• monitor and assess regime performance and condition – keeping things fit-for-purpose and future-proofed
• clearly articulate:
  • what their regimes are trying to achieve
  • any costs and other impacts they may impose
  • what factors pose the greatest risks to good regulatory performance.
• use this information to identify, monitor or act on, problems, vulnerabilities, and opportunities for improvement.
• maintain and provide:
  • a current database of the legislative instruments they are responsible for
  • transparent, risk-based compliance and enforcement strategies
  • accessible, timely information and support to help regulated entities understand and meet requirements.
• not propose regulatory change without:
  • clearly identifying the policy or operational problem it needs to address, with accompanying impact analysis
  • implementation planning that informs the policy and review arrangements.

What are rules and regulations?

Land transport rules (Rules) are a form of secondary legislation. Most Rules are signed into law by the Minister of Transport (or his/her delegate who is a Minister of the Crown) under the Land Transport Act 1998 (the Act), but they can also be made as Orders in Council. The Act sets out the principles and the policy framework for regulating on a particular issue; Rules contain detailed requirements for dealing with a particular issue. 

Land Transport Act 1998(external link)

Regulations and rules are often talked of interchangeably. In a New Zealand context, both are forms of secondary legislation.  A key difference is that regulations can set fees and charges, and can contain offences and penalties (and rules cannot).  A lot of rules have corresponding offences set out in the Land Transport (Offences and Penalties) Regulations 1999.

Land Transport (Offences and Penalties) Regulations 1999(external link)

As the government’s operational delivery arm for land transport and land transport regulation, Waka Kotahi is well-placed to administer and enforce the land transport rule set.  This is reflected in the delegation to Waka Kotahi from the Secretary for Transport to draft and consult on land transport rules.

Note: Rules made by Order in Council are signed by the Governor-General on the recommendation of the Minister.

Waka Kotahi does not draft the Land Transport (Driver Licensing) Rule 1999 and Land Transport (Road User) Rule 2004. These rules are drafted by the Parliamentary Counsel Office, as these two Rules apply to most road users and are the source of many key offences in the land transport system.

Objectives of New Zealand’s land transport rules include:

• mandating safe and appropriate road user behaviour, including requirements for the safe and efficient integration of different modes of transport (motor vehicles, walking, cycling, etc)
• controlling the entry to, and exit from, the land transport system of people, companies and vehicles; including processes for driver licensing and testing and helping to ensure the safe and efficient operation of transport services
• ensuring vehicles using our roads are operated, built and maintained safely and cleanly
• ensuring safe and appropriate speeds and traffic control measures are in place on highways and local roads.

Waka Kotahi aims to draft Rules in plain language so they can be easily understood and complied with. Each Rule must be economically viable, technically accurate and legally correct.

There are three types of Rule:

1. Ordinary Rules  – made by the Minister of Transport (or an Associate Minister) in accordance with the standard rule-making process (see diagram below). Most of the rules administered by Waka Kotahi fall into this category.
2. Emergency Rules  – made by Waka Kotahi. As allowed by the Act, they can be utilised to ‘alleviate or minimise any risk of death, or serious injury to a person, or damage to property’ (see s162(1) of the Land Transport Act 1998).
   An Emergency Rule can only be made when it is not practicable to make an Ordinary Rule.  A recent example of this relates to the temporary changes to speed limits on sections of State Highway 1 following the Kaikoura earthquake (see bylaw [PDF, 36 KB]).
3. Order in Council  - these Rules are signed by the Governor-General on the recommendation of the Minister of Transport. They are generally used in situations where the changes to be made are of such urgency or necessity a departure from the ordinary rule-making process is justified, or when the Minister prefers to use this process.  Recent examples of this relate to the 2020–2021 COVID-19 pandemic response.

The standard rule-making process

The process Te Manatū Waka The Ministry of Transport and New Zealand’s transport agencies (Waka Kotahi, Civil Aviation Authority and Maritime New Zealand) use to develop policy and Rules (see diagram below) is fairly uniform. It relies on quality risk and regulatory impact assessments to determine when and whether legislative interventions are appropriate.

Please note this is the standard process, and may be varied to suit the circumstances of a particular issue.

Standard phases of rule creation and amendment

The phases of rule creation and amendment are designed to assess:

• whether regulatory intervention is required
• what sort of intervention is appropriate
• what people or organisations think of the intervention
• what the Minister(s) wishes to do.

Initiation phase

Assessing the issue/problem to determine whether further investigation of a potential regulatory intervention is justified.

Policy investigation phase

If a case has been made for possible regulatory intervention, this phase sees policy analysis and engagement with interested groups to produce a Regulatory Impact Statement (RIS) and recommend appropriate regulatory intervention to the Minister.

Consultation

This phase often includes the development of a discussion document for consultation, seeking input into the policy development process. A new Rule or Rule amendment is drafted and generally accompanies the discussion document/other information material prepared for consultation.

Draft Rules and draft Rule amendments must undergo an appropriate level of consultation as per s.161 of the Land Transport Act 1998.

For Ordinary Rules, this includes:

• publishing a notice in the New Zealand Gazette
• allowing interested people or organisations a reasonable time to make submissions
• consulting with relevant groups and individuals both within and outside the land transport system.

Assessment and analysis

Submissions received during consultation are assessed and analysed. Officials work through arguments submitted for and against all proposals, and seek to finalise recommendations to the Minister(s).

Rule finalisation and signature  

A final draft Rule, together with accompanying papers, and communications material for signing, is prepared.

Like most government and Cabinet processes, interested government departments and agencies are generally given the opportunity to comment. Cabinet approval is required if:

• previously indicated
• requested by the Minister
• the Governor-General needs to sign any amended regulations consequential to the draft Rule eg for any offences/penalties for Rule breaches.

Following signing by the Minister of Transport, Ordinary Rules may come into force:

• at least 28 days after the date of gazetting (unless Cabinet agrees to a shorter period, in special cases)

or

• on a later date specified in the Rule.

Rules must be presented to the House within 16 sitting days of signing and are also referred to the RRC for scrutiny. If the RRC finds a Rule breaches Standing Order, it can recommend the Rule be disallowed.

Sources

Regulatory Development and Rule Production Handbook. Ministry of Transport. 2012.

New Zealand Government Regulatory Practice Initiative https://g-reg.govt.nz/(external link)