Rules made by Order in Council
The following Acts allow Rules to be made by Order in Council:
- Civil Aviation Act 1990
- Land Transport Act 1998
- Maritime Transport Amendment Act 2013
There is no provision for Rules to be made by Order in Council in the Railways Act 2005.
Use of the Order in Council provision
Recommending that a Rule is made by Order in Council may be appropriate when:
- the changes being introduced are of such urgency or necessity that a departure from the ordinary Rule-making process is justified.
- a significant error has been made that needs to be corrected immediately or a technical standard needs urgent updating
- a proposed urgent amendment affects only one or two industry players and public consultation through the standard Rule-making process is not warranted.
About Rules made by Order in Council
Rules made by Order in Council:
- Are exempt from some of the statutory requirements that apply to ordinary Rules. This includes specific statutory requirements to publish a notice of intention to make the Rule, and to consult with interested persons.
- Not subject to consultation as a statutory requirement, however it is still good practice to notify and consult on any legislation that has a material impact on the public or a particular group, to meet Administrative Law/ Cabinet Manual(external link) expectations.
If a Rule made by Order in Council relates to a Rule that is (or is to be) a legislative Instrument (currently this means only the Road User Rule or the Driver Licensing Rule) then Rule drafting is done by the Parliamentary Counsel Office (PCO) under instruction from the Ministry, and may require Cabinet policy approval.
The following is an example of a Rule made by Order in Council:
Example of Rule made by Order in Council
The Land Transport (Driver Licensing) Amendment Rule (No 2) 2011 was made by Order in Council to correct an error concerning commencement dates which had been made in an amendment Rule that the Minister of Transport had recently signed. The effect of the error would have been as follows:
- on 1 October 2011, a requirement limiting holders of learner and restricted motorcycle licences to motorcycles with an engine capacity of 250cc or less would have been revoked
- on 1 October 2012, a new regime, listing approved motorcycles for holders of learner and restricted licences, would have been introduced
- from 1 October 2011 to 1 October 2012, there would have been no limit on the power of the motorcycle that motorcyclists on learner or restricted licences could ride, as the existing limitation would have been revoked
An immediate correction was necessary to avoid the scenario outlined above. In this instance, consultation would have served no useful purpose as Cabinet had already agreed the correct policy.