Chapter 29 Delegated Legislation
Most of the legislation enacted each year is not made by Parliament directly. It is made by other persons or bodies under powers granted or delegated to them by Parliament and is generally known as delegated legislation. The forms which delegated legislation take are various. Orders in Council, proclamations, regulations, rules, notices, warrants and bylaws are how some of the instruments used to make delegated legislation are described. The most important of these instruments are known by the compendious term “regulations”. Their common feature is that they are legal instruments made under powers delegated, directly or indirectly, by Parliament.
In contrast to the enactment of legislation by Parliament, there are no general procedures for the making of delegated legislation that ensure that it is subjected to public debate and scrutiny before it is made, though individuals uniquely affected by a regulation may have a legal right to be consulted before it is made.
In addition, statutes conferring the power to make regulations may contain specific provisions requiring notice of the intention to make a regulation to be given and allowing interested persons an opportunity to make submissions.
But such provisions are not common.
Generally too, neither Parliament nor the House has any part to play in the actual making of regulations. Parliament has played its part by passing the legislation conferring the power to make the regulations. The exercise of that power is in the hands of another authority.
Parliamentary review of delegated legislation
The importance of delegated legislation, the limited opportunities for prior scrutiny of it and the almost non-existence of any parliamentary role, led to an inquiry by a select committee in 1962. (The committee is known as the Algie Committee after its chairperson, Sir Ronald Algie.) In its report the committee recognised that in modern conditions the practice of delegating law-making powers is in many cases necessary in the interests of efficient administration. The committee did not agree that delegated legislation was wholly or even substantially bad in itself. It was rather an inevitable and necessary attribute of parliamentary government.
This fundamental acceptance of the need for delegated legislation has never been challenged.
Nevertheless, while accepting a necessary role for delegated legislation, the committee felt that steps should be taken to guard against its objectionable features. One of these steps was the establishment of a select committee, at first called the Statutes Revision Committee, with an express brief to report from time to time on regulations that it considered infringed certain criteria. The Statutes Revision Committee, however, was not a specialist delegated legislation committee. Throughout its life its work was dominated by the consideration of primary legislation. Bills of a technical legal character (which tended to include criminal, company and courts legislation) were invariably referred to it for consideration. As a result, scrutiny of delegated legislation was a minor and, until the last few years of its existence, almost entirely neglected aspect of its work.
The increasing importance of delegated legislation and the apparent ineffectuality of parliamentary arrangements for dealing with it led to pressure for a more concentrated approach to it from the House. Consequently, in 1985, following a fresh look at possible arrangements,
the House determined to establish a select committee which was largely free of the burden of considering bills so that it could concentrate on scrutinising delegated legislation. This committee is known as the Regulations Review Committee, and it is the cornerstone of parliamentary oversight of delegated legislation.
At the same time as a specialist delegated legislation committee was established in 1985, the subject select committees were given power to initiate their own inquiries. In respect of regulations falling within their terms of reference they are able to examine any regulation that has been made. For the examination of a regulation on policy grounds a subject select committee, rather than the Regulations Review Committee, is the appropriate medium.
Regulations Review Committee
The Regulations Review Committee is a committee which the House by its Standing Orders establishes at the commencement of each Parliament.
The committee’s principal task is to examine all regulations.
In addition, the committee may examine draft regulations referred to it by a Minister,
consider provisions in bills that are before other committees which relate to regulations,
consider any matter relating to regulations on which it wishes to report to the House
and investigate complaints about the operation of regulations that are made to it.
The Regulations Review Committee was the first committee (in 1985) to be chaired by an opposition member, and it has now become an established convention that this should be so.
The committee meets regularly each week when the House is sitting and occasionally during adjournments too. In 2004 it held 30 meetings, for instance.
Included in its committee secretariat are legal staff from the Office of the Clerk to ensure that it has legal support of a high enough standard to enable it to carry out its tasks effectively.
The committee has taken the consistent line that it must strive to act in a bipartisan manner in conducting the scrutiny of regulations on behalf of the House. The House’s purpose in setting it up was to ensure that the technical scrutiny of regulations was not neglected by the House. The committee is concerned with how policy is implemented in regulations, but not with the merits of that policy. It is for the House and for the subject select committees to address the policy aspects or merits of regulations. The committee will therefore not question the policy underlying regulations in the scrutiny that it carries out.
The committee’s role in respect of the varying aspects of parliamentary scrutiny of delegated legislation is examined in this chapter. (A digest of the committee’s reports prepared under the auspices of the New Zealand Centre for Public Law is contained on the Victoria University of Wellington website.)
Judicial review of delegated legislation
As delegated legislation involves Parliament conferring on another person or body legal power to make statute law, it is appropriate that the House be jealous in limiting the extent to which it gives such delegated authority and that it monitor closely its exercise. Since the reforms effected in 1985 the House has endeavoured to make parliamentary control of delegated legislation more effective. But another, and longer-established, method of review of delegated legislation exists – that exercised by the courts.
The courts do not question the validity of a duly enacted Act of Parliament. But delegated legislation is subject to challenge in the courts on the ground of invalidity. As delegated legislation owes its existence to a statutory power, if its provisions are in excess of that power it is invalid and of no lawful effect. A regulation may also be invalid if a special procedure – for example, one involving consultation with interested parties – is prescribed to be followed before it is made and this procedure is not observed.
The courts’ powers to review regulations to ensure that they are, or were, made in compliance with the enabling Act may themselves be cut down by Parliament. Provisions in Acts of Parliament which seek to inhibit the courts’ power to rule upon the validity of delegated legislation may operate directly by prohibiting a court from reviewing the validity of regulations made under the Act, or indirectly by conferring the power to make delegated legislation in such wide subjective terms that it is difficult to put meaningful bounds on the delegated authority. These legislative practices are now generally regarded as undesirable, and are matters to which the Regulations Review Committee has regard in its work.
Human rights review of regulations
A regulation that is alleged to offend against the anti-discrimination provisions of the New Zealand Bill of Rights Act 1990 may be made the subject of a complaint to the Human Rights Commission. If the complaint cannot be satisfactorily resolved by the commission, civil proceedings may be brought against the Attorney-General before the Human Rights Review Tribunal.
The Human Rights Review Tribunal may issue a declaration that a regulation is inconsistent with the freedom from discrimination guaranteed by the New Zealand Bill of Rights Act.
If such a declaration is made the Minister responsible for the administration of the regulation must report to the House, bringing the declaration to its attention and advising of the Government’s response to it.
Review of a regulation by the Human Rights Commission and the Human Rights Review Tribunal on anti-discrimination grounds may overlap with some of the grounds on which the Regulations Review Committee examines regulations.
Definition of regulations
Mention has already been made of the variety of instruments through which delegated legislation may be made. Those instruments which are subject to comprehensive requirements relating to their printing, publishing, scrutiny by the Regulations Review Committee and general control by the House are those falling within the statutory definition of “regulations”.
Regulations are defined as—
Regulations, rules, or bylaws made under an Act by the Governor-General in Council or by a Minister of the Crown:
An Order in Council, Proclamation, notice, Warrant, or instrument, made under an enactment that varies or extends the scope or provisions of an enactment:
An Order in Council that brings into force, repeals, or suspends an enactment:
Regulations, rules, or an instrument made under an Imperial Act or the Royal prerogative and having the force of law in New Zealand:
An instrument that is a regulation or that is required to be treated as a regulation for the purposes of the Regulations Act 1936 or Acts and Regulations Publication Act 1989 or this Act:
An instrument that revokes regulations, rules, bylaws, an Order in Council, a Proclamation, a notice, a Warrant, or an instrument, referred to in paragraphs (a) to (e).
Thus, not all proclamations or Orders in Council, for instance, are regulations. Acts of Parliament delegate powers to the Governor-General to be exercised by proclamation or Order in Council. These will often be regulations. But proclamations or Orders in Council made in the exercise of prerogative powers possessed by the Crown, or, though made under an Act, that do not vary or extend the scope or provisions of the Act (for example, orders or proclamations taking land under a power conferred by the Act) are not regulations. Nor are bylaws made by local authorities. (Bylaws made by local authorities are subject to a separate legal regime.
) As at 1 June 2001 there were 3,058 statutory regulations in force (as compared with about 700 Acts of Parliament).
Regulations are sometimes referred to as secondary legislation as distinct from primary legislation enacted directly by Parliament. However, there has in recent years been a proliferation of types of delegated powers to make legislation and it is not always easy to classify delegated legislation in this way.
For example, regulations may themselves in turn delegate power to make legislation or to issue instruments of a legislative character, known as tertiary legislation. Instances of tertiary legislation are: bylaws (other than local authority bylaws), codes of practice, standards, guidelines, notices and directions. In general, tertiary legislation is not subject to the statutory and parliamentary controls applying to regulations.
Statute may specifically provide that tertiary legislation is not to be regarded as a regulation so as to avoid any doubt about the matter.
Other instruments may have only some of the characteristics of regulations and be exempted by statute from many of the other consequences (for example, in relation to their drafting and publication) that attach automatically to a full regulation.
What legal and parliamentary controls over delegated legislation apply to a particular instrument therefore depends on the precise nature of the statutory provision authorising (or ultimately authorising) its making. The Regulations Review Committee pays close attention to this aspect of any regulation-empowering provisions in bills before the House.
Only regulations as statutorily defined are within the purview of the Regulations Review Committee for examination.
Therefore a complaint to the committee about an instrument that is not a regulation cannot be pursued by the committee.
However, it is for the committee to decide whether an instrument falls within its jurisdiction.
The committee, in drawing matters of general significance to the attention of the House, can make recommendations about the institutional setting within which regulations are made. The unsatisfactory nature of the form in which some delegated legislation is made has attracted its attention.
The difficulties with the classification of delegated legislation have led to concerns both for potential users of delegated legislation and for scrutiny by the Regulations Review Committee. Accordingly, the committee has recommended that the definition of “regulations” in the Regulations (Disallowance) Act 1989 should be amended to follow the conceptual definition of “legislative instruments” in Australian legislation.
While not accepting that immediate legislative change is required, the Government has agreed to monitor the operation of the Australian legislation.
Primary legislation authorising regulations
Parliamentary control of delegated legislation ought, logically and effectively, to begin with close consideration and delimination of the provision that delegates the power to make such legislation in the first place. This power is contained in primary legislation. A first question for the House and its committees to address when presented with a proposal to authorise the making of delegated legislation is thus: is the power necessary and appropriate?
The Algie Committee in 1962 established that making delegated legislation is not, in principle, objectionable. The Regulations Review Committee has set out its view of the circumstances in which delegated legislation in its widest sense may be appropriate.
In the view of the committee, delegated legislation should be confined to matters of detail and the implementation of policy. It should not be the means of making policy itself. Specifically, the committee felt that primary, not delegated, legislation should be the means by which—
•an agency is established and has its functions defined
•substantive personal rights are created
•powers of search and seizure are created
•imprisonable criminal offences are created.
These principles for using primary as opposed to delegated legislation have not been specifically endorsed by the House and are not rules that bind those preparing primary legislation or committees considering bills. However, they do provide a background against which proposals for delegated legislative powers can be judged in the course of the legislative process and are liable to be uppermost in the Regulations Review Committee’s contribution to that process.
Power of the Regulations Review Committee to report on legislative proposals
In 1986 the Regulations Review Committee was given the power to report to any other committee on an empowering provision in a bill before that committee. This power to intervene in the legislative process has been considerably extended since then.
The committee may, in respect of a bill before a committee, consider and report to that committee on—
•any regulation-making power
•any provision that contains a delegated power to make instruments of a legislative character
•any matter relating to regulations.
For this purpose the committee examines every bill that is introduced into the House. In 2003, for example, the committee made 11 reports to other committees on regulations issues in bills.
In making its reports the committee does not confine itself to a written report to the other committees. It also makes its staff available to those committees to present and explain the reports and answer questions from members of other committees that may arise.
The committee thus assumes an advocacy role in the legislative process for the delegated legislative principles that it has identified.
As well as having the right to intervene in the legislative process, the committee is often invited by other committees to comment on regulation-making powers either contained in a bill as introduced or to be introduced into the bill by way of amendment.
The committee has also been invited by another committee to comment on a regulation-making scheme in a proposed international treaty that was before the latter committee.
The committee’s reports to other committees are summarised or noted in its own periodical reports to the House.
Outcomes of committee reports
The committee’s reports on regulation-making powers to other committees are merely recommendations to those committees. It is for the latter to decide whether to adopt them and recommend amendments to the bills to reflect them. They do not always do so. As subject select committees they are charged with considering the policy issues contained in bills; this is not the Regulations Review Committee’s task. For this reason, they may come to a different conclusion from the Regulations Review Committee on a regulation-making provision – though the latter may ask the committee to reconsider the matter
and has shown some persistence in pursuing issues with Ministers even after its recommendations have been initially rejected by the committees to which they were directed.
There is no necessary inconsistency here, as finally it is a matter for the judgment of the House. But the ability of the Regulations Review Committee to focus committees’ attention on regulations enables it to raise questions about their utility that may not otherwise arise, and has led to an increasing number of changes being made to legislation passed by the House. In 2001 it made 27 recommendations for bills to be amended, 23 of which were implemented in whole or in part.
The section or sections in an Act of Parliament authorising delegated legislation to be made are known as regulation-making or empowering provisions. The Algie Committee recommended that the precise limits of the law-making power conferred by Parliament should be set out as clearly as possible in the empowering provision. Following this recommendation, a new standard formula for provisions authorising the making of regulations was adopted on the initiative of the then Chief Law Draftsman (Chief Parliamentary Counsel). The formula was designed to conform to the committee’s ideal of a provision which set out the precise limits of the law-making power and left intact the courts’ power to review the validity of regulations made under it.
No parliamentary body was specifically charged with keeping regulation-making provisions in bills under review for conformity with these principles. As each bill was referred to a select committee for consideration, it was open to the committee concerned to attend to any objections to regulation-making provisions that it contained. Inevitably, however, this was not a prominent part of each committee’s consideration of the bills before it and no overall expertise about empowering provisions could be built up by one committee. The Regulations Review Committee now has the brief of commenting to other committees on such provisions.
The committee examines bills to determine whether the delegation of Parliament’s law-making power is appropriate and clearly defined and represents good legislative practice. While the committee’s examination is not confined to the scrutiny grounds identified in the Standing Orders,
those grounds do provide a useful test: would regulations made under the empowering provision under review potentially transgress one of those grounds? The committee’s examination also considers whether regulation-making powers infringe well-established principles applying to delegated legislation (for example, those set out in guidelines issued by the Legislation Advisory Committee). Legislative proposals that provide for matters of policy and substance to be enacted by regulations, for an Act itself to be amended by regulations (a Henry VIII clause), or for law-making powers to be delegated without provision for adequate scrutiny and control of the instrument exercising those powers, are all matters likely to receive attention from the committee.
The grounds on which the committee has thus questioned the drafting of regulation-making provisions have been various. In some cases the committee’s concerns have been about the process by which powers made under the empowering provision would be exercised. Where the exercise of powers would not be by regulations and the committee considered that it should be, it recommended accordingly.
On another occasion the committee considered that the regulations to be made under the empowering provision should be subject to express confirmation by Parliament given their significance (the fixing of levies).
Amongst other things, the committee has objected to: an empowering provision that would have allowed an Order in Council to override provisions of an Act;
a provision that was designed to oust the jurisdiction of the courts; a provision that would apply the provisions of one Act to another “with modifications” and one with retrospective effect.
Regulations containing any of these elements would constitute grounds on which the committee might draw them to the House’s attention.
Amendment or repeal of primary legislation by regulations
Parliament may delegate the power to amend or even repeal primary legislation by regulation. This type of regulation-making provision is commonly called a “Henry VIII clause”. It has been said that this designation derives from that King’s association with autocratic government and specifically because in 1539 Parliament gave him extensive power to amend statutes by proclamation. But it has been doubted whether this is truly justifiable, since Henry VIII ruled (1509 to 1547) well before the concept of parliamentary sovereignty was established.
Such provisions are in any case much older than that King’s reign.
The transfer of power from the legislature to the executive that a Henry VIII clause entails has led to such clauses being treated with suspicion as possibly constitutionally inappropriate.
The Regulations Review Committee has recommended that such powers should be delegated only in exceptional circumstances. It has accepted that in the case of transitional provisions in legislation a Henry VIII clause dealing with unforeseen contingencies arising during the implementation of a measure may be justified. But it has been especially critical of using a Henry VIII clause to override legislative amendments made subsequent to the enactment of the clause.
It has also given detailed consideration to a special type of Henry VIII clause that allows statutory provisions to be overridden for the purposes of implementing international treaties.
(See Chapter 43.)
The Regulations Review Committee has indicated that it will pay particular attention to regulation-making provisions authorising the making of deemed regulations. Deemed regulations are regulations not published with the general series of statutory regulations. The committee will need to be persuaded that such regulations are appropriate.
(See pp. 405–6 for deemed regulations.)
A further practice that the committee has indicated that it will pay attention to is the incorporation of material into regulations by reference. Incorporation by reference is a drafting technique which gives legal effect to provisions contained in a document without actually repeating those provisions or that document in the text of the legislation or regulation itself. Using such a technique can cause difficulties in accessing the law if the document is not readily available. It also means that as the document changes, the law effectively changes without any conscious parliamentary decision being made to alter it. The committee has indicated that it intends as a matter of course to scrutinise provisions in bills authorising this practice and to ask departments to demonstrate how regulations that incorporate material by reference comply with best-practice guidelines that have been issued by the Legislation Advisory Committee on the conditions under which this should be done
– for example, placing the document incorporated by reference on the internet so as to facilitate access to it. But the committee has also accepted that there may be circumstances in which such best-practice cannot be complied with because of copyright concerns.
On a number of occasions the committee has recommended to the select committee on a bill that a regulation-making provision be amended to define with greater particularity both the object to be served by the regulations that the provision is to authorise and the power to be granted under it. Its concern with a commonly included general final paragraph in empowering provisions (that regulations may be made “for such other matters as are contemplated by or necessary for giving full effect to this Act”) caused the committee to hold a special inquiry into that type of provision. The committee was able to satisfy itself that such a provision was acceptable and that its effect was truly limited to subsidiary and incidental matters.
Preparation of regulations
Regulations are drafted in the Parliamentary Counsel Office. Some 40 percent of the drafting resources of that office may at any time be committed to drafting delegated legislation as opposed to primary legislation.
Most of the delegated legislation drafted by the office consists of statutory regulations, though the office also drafts other instruments (proclamations, some notices, etc.) that are not regulations. From time to time the Regulations Review Committee conveys its views on the drafting style of regulations to the Chief Parliamentary Counsel.
Deemed regulations are not drafted in the Parliamentary Counsel Office. Indeed, one of the principal criticisms of such regulations (along with their unavailability) is the variable and often defective quality of their drafting. Deemed regulations are drafted by the department or agency responsible for making them.
Consideration of draft regulations
It is unusual for the House to have the opportunity to consider regulations before they are promulgated, but occasionally, when the House has a bill before it, the Minister produces a draft of regulations proposed to be made under powers to be conferred by the bill. This has happened with sets of draft regulations in the transport sector while the bills concerned were being passed through the House. In one case, proposed amendments to the bill enabled new regulations relating to seat belts and child restraints to be made, and appended to the supplementary order paper containing these amendments was a draft of the regulations proposed to be made under the powers sought. The supplementary order paper was referred to the select committee considering the bill, and the draft regulations were considered by it as part of its consideration of the bill.
In another case, by motion in the House, draft regulations were referred to the select committee then considering a bill to introduce a graduated licensing system and were considered by the committee along with the bill.
Referral of draft regulations to the Regulations Review Committee
While formal referral of draft regulations to other committees is rare, there is provision under the Standing Orders for the Minister concerned to refer draft regulations to the Regulations Review Committee for its consideration.
This has now grown to be a significant area of work for the committee.
During the course of 1999, 21 sets of draft regulations were referred to the committee under this provision, the greatest number ever in a single year.
Increasingly, and especially in the transport sector, the committee is being absorbed into the standard consultation process by having draft regulations referred to it. Since November 1998 all proposed land transport, maritime transport and civil aviation rules have been referred to it in draft by the Minister of Transport.
The committee may take the initiative in inviting a Minister to refer draft regulations which it has learnt about,
perhaps after being alerted by the receipt of a complaint.
In one case where there was a conflict of views within the Government itself as to the scope of draft regulations, the Minister referred them to the committee to seek its views. After the committee endorsed them with some recommended amendments, the Minister incorporated its recommendations into the final version of the regulations.
The committee has particularly urged Ministers to refer to it draft regulations that incorporate material into the regulations by reference.
Generally, the committee has made it clear that it welcomes Ministers referring regulations for pre-promulgation scrutiny.
This is especially important where regulations, on their face, raise issues of trespass on personal rights and liberties. Pre-promulgation scrutiny can allow potential problems to be identified and resolved prior to the regulations being made.
The committee regards its relationship with the referring Minister as an advisory one. For that reason if the draft of the regulations referred to it has not yet been publicly released, it may consider it appropriate to hear evidence from affected parties in private.
Generally, it does not hold extended hearings on draft regulations and may confine itself to a briefing from officials of the department concerned.
As with its scrutiny work generally, the committee will not comment on policy aspects of the draft regulations.
The committee formally reports to the Minister on any draft regulations referred to it.
This does not preclude the committee subsequently reporting to the House in its periodic reports describing its activities, and it regularly does this. The committee has also conveyed its views on draft regulations to the select committee which was at that time considering a bill under which the regulations were to be made.
The committee may choose not to conduct a detailed scrutiny of draft regulations where there is insufficient time to do so satisfactorily, reserving such an examination for when the regulations are made.
The fact that the committee has examined regulations in draft does not preclude a further review of the regulations by the committee when they are made.
Indeed the committee is likely to monitor whether any changes which it has suggested have subsequently been made to the final regulations. It may, where it has reported adversely on regulations, invite a Minister to refer any replacement regulations to it in draft. Thus, following criticism about fees regulations for identity services and codes of animal welfare, draft new regulations were referred to the committee for consideration.
Publication of regulations
Regulations made by the Governor-General in Executive Council are notified in the Gazette and then published in an official series first established in 1936.
Free public access to regulations is also provided on an interim website of New Zealand legislation. Eventually, this website will be superseded by an electronic database of New Zealand legislation (primary and delegated) available on the internet. (Regulations that are not published in this way – deemed regulations – are mentioned below.) The Chief Parliamentary Counsel arranges for reprints to be made of regulations incorporating any amendments to them that have been adopted since they were first made. Any regulations that are drafted outside the Parliamentary Counsel Office but which are required to be published in the official series must be forwarded to the Chief Parliamentary Counsel immediately after they are made so that that officer may arrange for their printing and publication.
Instruments which are not regulations as defined may be published in the official series if the Attorney-General or the Chief Parliamentary Counsel so directs.
The Regulations Review Committee has recommended that amendments of instruments that are not regulations should be published in the official series if the original instrument was so published.
These requirements are designed to ensure that regulations are published in a timely and easily-accessible form.
There are many legislative instruments which, although they are regulations, are exempted from these publication requirements and which are not submitted to the high-level internal governmental processes of endorsement by the Cabinet and at a meeting of the Executive Council. Nor are such regulations drafted in the Parliamentary Counsel Office. These instruments have become known as “deemed regulations”. In 1999 the Regulations Review Committee identified 50 statutes that authorised such regulations.
As regulations, they were subject to scrutiny by the committee but they could be difficult to identify and obtain and varied in the quality of their drafting. In general, the committee believed that deemed regulations suffered from inappropriate formats and lack of consultation and accessibility.
The committee consequently recommended that deemed regulations should be authorised only in defined circumstances when an exception to the traditional form of regulation is justified and that in any event they should be subject to explicit Cabinet endorsement. Furthermore, there are certain subjects which because of their importance (for example, taxation and criminal offences) the committee considered should never be dealt with by deemed regulations.
In its responses to the committee’s report, the Government agreed to alter certain of its internal procedures when a proposal to create a power to make a deemed regulation was under consideration. The new procedures were designed to require it to be clearly established that deemed regulations were justifiable. The Government did not accept that deemed regulations should be submitted to Cabinet for its endorsement. It did accept that deemed regulations should be published along with traditional regulations under the Acts and Regulations Publication Act 1989 unless there was good reason to the contrary. In such a case the instrument would be drafted in the Parliamentary Counsel Office. (Instances when a departure from this policy would be justified included regulations implementing internationally-promulgated standards which follow different formats from New Zealand legislation.) In response to the committee’s complaints of difficulty of access to deemed regulations, a working party compiled and included in a report a list of all deemed regulations not published in the statutory regulations series. The Parliamentary Counsel Office has undertaken to keep this list up to date on the basis of advice from authorities making deemed regulations. Material from the Parliamentary Counsel Office has been made available to those drafting deemed regulations to help them to follow better-defined and more consistent drafting standards. Other preparation standards issued are to be addressed in guidance material to be prepared by the Legislation Advisory Committee.
Presentation of regulations to the House
All statutory regulations must be laid before the House not later than the sixteenth sitting day after the day on which they are made.
This obligation applies as equally to instruments that are deemed to be regulations as it does to instruments that are regulations in their own right.
This is a general requirement specifying the time within which regulations must be presented to the House, but if there is a specific statutory requirement that particular regulations must be presented within a shorter time-frame (or may be presented within a longer time-frame), that provision prevails over the general provision.
In general, whether any failure to comply with a statutory requirement invalidates the process of which that requirement is part depends upon the view that the courts take of the consequences of non-compliance in the statutory context.
Factors identified by the court as relevant in making this consideration include: the degree and seriousness of the non-compliance, the potential consequences which may arise through the non-compliance and whether prejudice has occurred or is likely to have occurred.
This test (formulated in respect of a statutory notice to an individual) has been applied by the court to test the validity of a particular regulation presented to the House out of time. In the circumstances of that case it was held that failure to present the regulations to the House within 16 sitting days did not invalidate them.
But, it is suggested, while this is the appropriate test to apply to the general requirement that regulations must be presented to the House, it should not be applied to test the validity of particular regulations presented pursuant to that general provision.
Subject to any particular legislative variations, the presentation of regulations to the House is dealt with by one general legislative provision, which requires presentation within 16 sitting days.
There is no justification for reaching different conclusions on the effect of this provision in respect of its application to different regulations and in respect of its application of the same regulation to different persons. Yet if the factors identified above were applied to particular regulations, some regulations presented out of time might be found to be valid and others might be found to be invalid, and the same regulation found to be valid in its application on one occasion and invalid in its application on another occasion, regardless of the fact that the statutory provision requiring their presentation to the House is the same in all cases. Consequently, it is submitted, failure to comply with the general provision to present within time should have the same legal consequence as to validity, regardless of the particular regulation in question.
The requirement to present regulations to the House is something that is done with a regulation that has already been made; it is not a step in making the regulation in the first place. Although there is a general drafting practice followed of not bringing regulations into force until 28 days after they have been made, this practice is often departed from without any question being raised as to the legal effect of such regulations prior to their presentation to the House. Consequently, the view has generally been taken that presentation is one means of ensuring that publicity is given to a regulation that has already been made rather than being an essential step in making the regulation or in ensuring its validity or continuing validity (though this requirement has been described as a “feeble safeguard” given the large number of documents presented to the legislative).
Where the Regulations Review Committee has identified regulations as having been presented out of time, its comments have been limited to expressing its concerns that the failure to present the regulations may mean that they are not brought to its attention.
It is also clear that the House’s power to disallow regulations is not dependent upon those regulations having been presented to it in the first place.
The statutory provision relating to presentation may in a particular case make presentation an essential condition for the validity or continuing validity of regulations made under it.
Thus, regulations increasing rates of social security and war pension benefits have, since 1983, been required to be laid before the House not later than 16 sitting days after they are made. The legislation formerly went on to provide that if they were not so laid within that time they automatically expired. When these sections were re-enacted in 1990, the provisions imposing automatic expiration of the regulations for failure to present them were omitted.
It was also formerly expressly provided that failure to present emergency agricultural regulations caused them to expire on the close of the sixteenth sitting day after they were made.
There is a definite and significant contrast between the requirement to present such regulations and the general presentation requirement in the Regulations (Disallowance) Act.
Where the statute under which regulations are made provides that failure to present the regulations within a certain time automatically invalidates them, the position is clear. But such a provision is exceptional (indeed there appear to be no such provisions currently in force). In the absence of a provision to that effect, it is submitted that the general obligation to lay regulations before the House (real and legally enforceable as the obligation undoubtedly is) should not be regarded as affecting the validity of the regulations. Any failure to comply (if relevant in a particular case) may, however, be taken into account by the courts in determining what penalty or relief to order in the case, especially if failure to present a regulation has been accompanied by failure to publish it generally.
Regardless of the legal effect of failure to present regulations to the House within the statutory time limit, failure to do so will inevitably attract criticism from the Regulations Review Committee.
Parliamentary involvement in making regulations
Consultation with the House
Statute may require that, before a legal power can be exercised, there must be consultation with the House of Representatives. In regard to delegated legislation there is provision for consultation with the House and committees of the House before regulations relating to the reporting standards to be observed by departments, certain organisations and offices of Parliament may be prescribed.
Before any regulations may be made prescribing the non-financial reporting standards that departments, certain organisations or offices of Parliament must apply and the form in which that information must be presented to the House, the Minister of Finance must submit such regulations to the Speaker in draft.
The Speaker presents the draft regulations to the House as soon as reasonably practicable.
The Minister, after considering any comments of the Speaker or any committee of the House that considered the draft regulations, may amend the regulations relating to departments and organisations as the Minister sees fit.
The regulations may then be made. (See Chapter 35.) In the case of regulations relating to offices of Parliament, the regulations may only be made after they have also been approved by resolution of the House.
Validation of regulations by statute
Some statutes provide for the making of regulations that will cease to have effect after a period of time unless they are “validated or confirmed” by an Act of Parliament passed within that time. Such regulations are subject to a statutory “sunset clause” whose effect can be avoided by Parliament confirming the regulations and giving them continuing force. To validate a regulation, however, as opposed to merely confirming it, potentially does more than avoid the lapse of the regulation under a sunset clause. It can also cure any other defect in the regulation or in the manner in which the regulation was made that would otherwise have led to the regulation being regarded as invalid.
Effectively, Parliament in validating a regulation ratifies it and adopts what has been done. The position is the same as if Parliament had itself made the regulation in primary legislation.
While to validate includes to confirm, it may go very much further than the latter process and can make an unlawful regulation lawful. However, as a matter of practice, the annual legislation validating and confirming regulations usually restricts the effect of any “validation” solely to preventing the regulation from expiring and thus leaves the regulation open to challenge on any other ground.
Such legislation, though it may be termed validating legislation, is in truth only confirmatory legislation.
The statutes that incorporate sunset clauses into their regulation-making provisions are dealt with below as aspects of Parliament confirming regulations in force, but when Parliament enacts legislation confirming the regulations it may take the opportunity to declare them to be valid also in a general sense. Indeed, the desire to remove any doubts about the validity of the regulations may be the main reason for introducing the legislation.
Apart from regulations that are subject to sunset clauses, Parliament occasionally passes other legislation validating regulations about whose legality there is a serious doubt. In this regard the Regulations Review Committee has expressed concern at the retrospective validation of regulations that were made in breach of statutory consultation requirements. The committee will critically examine the reasons given for such a course. It has affirmed its belief that specific consultation procedures prescribed by statute should be strictly complied with.
Confirmation of regulations by statute
There are a number of statutes which empower the making of regulations with immediate effect but which also require those regulations to be expressly confirmed by Act of Parliament within a period of time, otherwise the regulations will cease to have effect. In considering and passing a bill to confirm such regulations, the House is given the opportunity of debating the regulations concerned at all the stages involved in the passing of a bill, and members can express their views on the regulations’ policy and drafting.
While retrospective, where this form of control operates it is of a very high order and of wide extent.
There are no particular types of regulations which must be made subject to this confirmation procedure. However, the Regulations Review Committee has suggested that there are four categories of regulation that should be considered as especially suitable for statutory confirmation—
•regulations imposing a financial charge in the nature of a tax
•regulations amending the empowering Act or another Act (Henry VIII clauses)
•regulations dealing with issues of policy under the authority of a broad empowering provision.
The fact that regulations fall within one of these categories should indeed prompt a preliminary inquiry as to whether delegated legislation is appropriate at all, since the subject-matter of the regulations may be important enough for enactment in primary legislation. If a regulation-making power is appropriate, it is a matter for judgment as to whether statutory confirmation should be employed in any particular case. For instance it may not be appropriate to require confirmation in every case where regulations merely alter the details in a schedule to an Act. But where such alterations are not limited to minor corrections or updating, primary legislation or regulations subject to confirmation will be appropriate.
The time for which regulations that are subject to confirmation may run before lapsing or expiring differs according to the precise provisions set out in the Act under which they are made. Some regulations lapse 12 months after they are laid before the House, unless confirmed by legislation passed within that time.
Others lapse on 31 December where they are made in the first half of the year, and on 30 June in the following year where they are made in the second half. This gives them an effective life of under a year before they must be confirmed.
Others have a slightly longer potential life before confirmation is needed by not expiring until dates in the following calendar year in all cases
or in some cases.
In one case, the regulations concerned remain in force until the end of the session in which they are made – an indeterminate period that may be shorter or longer than the other formulas.
(See Chapter 33 for Orders in Council relating to taxation that require confirmation or validation.)
Each year legislation is introduced to confirm regulations that would otherwise lapse. Insofar as it is possible, a variety of regulations made under different Acts will be confirmed in a single piece of legislation, often called the Subordinate Legislation (Confirmation and Validation) Bill, but this may not be possible if it is desired to validate or confirm a particular regulation urgently. There may therefore be more than one bill introduced each year for this purpose.
Confirmation is the House’s opportunity to consider the policy which lies behind the regulations to be confirmed. It is not an exercise confined to examining regulations for conflict with delegated legislation principles. There is therefore no presumption that a confirmation bill will be referred to the Regulations Review Committee when it has been introduced. A confirmation bill dealing with regulations solely relating to producer boards, for example, would be likely to be referred to the Primary Production Committee, where the committee could hear evidence from growers opposed to the policy underlying the regulation – something the Regulations Review Committee avoids encroaching upon. But a confirmation bill dealing with a miscellany of regulations covering a number of subjects is likely to be referred to the Regulations Review Committee.
Regulations made by the House
Parliament usually delegates legislative powers to the Governor-General or Ministers, but it is perfectly competent for such powers to be delegated to the House itself and in one instance this has been done. It is statutorily provided that the House may make rules for the guidance of the Ombudsmen in the exercise of their functions.
Such rules are made by resolution of the House, and are printed and published as if they were regulations.
The House has made two sets of rules under this power, in 1962 and in 1989,
both relating to the publication of reports by the Ombudsmen.
Amendment of regulations by the House
The House has a general statutory power, by resolution, to amend any regulations or to revoke any regulations and substitute other regulations for them.
Such amendments or substituted regulations are advised to the Chief Parliamentary Counsel by the Clerk of the House, and are printed and published in the same manner as any other regulations.
They come into force on the later of any commencement date expressed in them or the twenty-eighth day after a notice advising of the revocation or amendment has been published.
Any member may give notice of motion to amend or substitute a regulation. Such a notice is set down as a Government or Member’s order of the day, as the case may be. A notice for amendment of a regulation is subject to financial veto by the Government if the amendment or revocation would have more than a minor impact on the Government’s fiscal aggregates.
This amendment and substitution power gives the House a general authority to make regulations, but only in amendment or substitution for regulations that have already been made and not as an initiator of regulations in its own right. Any amended or substituted regulations made by the House must themselves, as delegated legislation, be within the terms of the empowering provision authorising the making of the regulations in the first place. The power has never been exercised.
Approval of regulations by affirmative resolution of the House
Statute may provide that certain types of regulations cannot come into force unless the House approves them or approves the Order in Council for their commencement. Effectively, the House is asked to approve the making of the regulations. This is known as the “affirmative resolution procedure” because unless the House positively approves of the regulations they will never come into effect. (The affirmative resolution procedure has also been applied to instruments that are not regulations, such as instructions as to the non-financial reporting standards of offices of Parliament.)
The affirmative resolution procedure was first introduced in respect of Orders in Council amending the lists of controlled drugs set out in the schedules of the Misuse of Drugs Act 1975. Where a substance is listed as a controlled drug, criminal penalties apply in respect of its supply or possession, depending upon its classification in those schedules. Substances are classified according to their risk of harm.
A “fast-track” means of responding to rapid developments in the illicit drug market, with the consequent need to include new substances in the schedules and reclassify others, led to the development of the affirmative resolution procedure whereby the schedules can be amended by regulations, but only following explicit parliamentary endorsement.
A similar procedure has been devised for altering the amount of a controlled drug in a person’s possession that automatically raises a presumption that the drug is possessed for the purposes of supply.
The procedure has since been extended to other types of regulations.
Typically, regulations subject to the affirmative resolution procedure can only come into force in accordance with a commencement order after the regulations have been approved by resolution of the House.
Approval may be given only 28 days after notice of the regulations amending the schedules has appeared in the New Zealand Gazette.
Such regulations lapse if a motion to approve the commencement order is defeated or if no commencement order is approved within one year.
In the case of regulations prescribing the publication and non-financial reporting standards for offices of Parliament, the House must be consulted on the regulations in draft first and they may be made only after they have been approved by resolution of the House.
The House has supplemented these statutory procedures by making its own rules for how a motion to approve a regulation or other instrument is to be dealt with.
A notice of motion to approve a regulation or proposed regulation under any statute stands referred to a select committee for examination. The Clerk allocates the notice to the most appropriate committee.
(A notice of motion may be given while any statutory waiting time is running. The select committee’s examination of the commencement order and the statutory waiting time may run simultaneously.) The committee must report back to the House on the notice of motion no later than 28 days after it was lodged.
The depth of the examination carried out by the committee (in particular, whether it hears public submissions) is a matter for it. Inevitably its examination of the order must be carried out swiftly, otherwise the intent of the legislation to provide a fast-track amendment process would be defeated.
The House’s rules provide that no motion to approve a regulation or proposed regulation may be moved until the committee has reported back on the notice of motion or 28 days have elapsed since the notice was given, whichever is the earlier.
During this time the notice of motion appears on the order paper with a note indicating that it cannot be dealt with until the occurrence of one of those events. When the committee does report on the notice, its report is set down for consideration together with the notice of motion.
If the committee reports back within 28 days the motion can be moved and dealt with at any time thereafter and if, for whatever reason, the committee fails to carry out its obligation to report within 28 days the motion can be moved in the absence of such a report. However, in any case, any time prescribed by statute must have elapsed since the original regulation was notified in the Gazette for the House’s approval of it to be effective.
The Health Committee in its consideration of controlled drugs orders has adopted a practice of requesting a briefing from the Expert Advisory Committee on Drugs before an order is made classifying a drug and then a further briefing when a notice of motion is lodged. Evidence from officials of other departments involved in the process may also be heard. The committee scrutinises the process followed by the expert committee in making the recommendations that led to the proposal to classify the drug. If the Health Committee feels that further consultation or examination is necessary it will undertake it.
Where, in any case, the House is given power to approve the making of regulations, the House’s approval of them does not exempt the regulations concerned from judicial scrutiny of whether they were made within the powers conferred by the empowering legislation.
It has been said, that if regulations have been approved by the House it will be more difficult to persuade a court to intervene on the grounds that the regulations are vitiated by being unreasonable.
On the other hand, judges may differ in the weight that they give to the fact that a regulation has received the prior approval of the House.
As the initial examples of the affirmative resolution procedure involved Henry VIII clauses, the dangers of its proliferation for this purpose led the Regulations Review Committee to inquire into the principles regarding its use. The committee, in an interim report, expressed concern at the use of the procedure to amend primary legislation by regulation in areas that dealt with significant policy matters.
It has also protested at proposals to extend the procedure into new areas, though the subject select committee considering the matter may take a different view.
Revocation or disallowance of regulations by the House
The House may have specific power conferred on it to revoke regulations in certain cases. Where these specific provisions apply, any disallowance by the House may be effected in accordance with their terms. There are currently no such provisions subject to this power.
But the House does have a general power to disallow any regulations by resolution.
(Though it may not disallow amendments to regulations or substituted regulations that it has made itself.
) This power is not limited by time. The House does not have to exercise its general disallowance power within any particular time after the regulations in question have been made. Where the House does resolve to disallow regulations, those regulations cease to have effect on the day the disallowance resolution is passed or on such later date as may be specified in the resolution itself.
The disallowance of a regulation has the same effect as if the regulation had been revoked.
Thus it does not affect the validity of anything already done or any existing rights. Generally, the revocation of a regulation does not revive any legislation itself repealed or revoked by that regulation.
But in regard to disallowance this rule is changed. Where the regulation that is disallowed itself amended, repealed or revoked any Act or regulation, that Act or regulation is restored to force.
Any disallowance resolution is printed and published as if it were a regulation.
Any member may give notice of motion to disallow a regulation. Such a notice is set down as a Government or Member’s order of the day as the case may be. The first notice of motion to disallow a regulation that was given lapsed when Parliament was dissolved.
The first attempt to disallow a regulation that was debated by the House was defeated.
The House has simultaneously debated four motions to disallow regulations.
A motion to disallow a regulation is a motion which, if passed, would have force of law by virtue of the statute under which it is made. It is therefore a motion which is subject to financial veto by the Government.
If the Government considers that the disallowance that is proposed would have more than a minor impact on the Government’s fiscal aggregates it may issue a financial veto certificate at any time before the motion is moved.
(See Chapter 31 for the issuing of financial veto certificates.) The consequence of the issuing of a financial veto certificate is that the motion is out of order and no question is put on it although it can still be moved and debated.
Some instruments are made subject to the House’s disallowance power though they are not subject to the printing and publication requirements that apply to regulations generally (deemed regulations).
The House’s general power to disallow regulations may be abrogated in a particular case. Regulations amending the controlled drugs list and the list of restricted substances (which are subject to parliamentary approval before they can come into force) are not subject to disallowance.
Automatic disallowance of regulations
In one case there is provision for the automatic disallowance of regulations. While any member of Parliament may give a notice of motion to disallow a regulation, there is no guarantee that this notice (or any other notice) will be considered by the House. Government orders of the day have a precedence that enables them to be considered, but Members’ orders of the day do not, and a Member’s notice of motion will lapse after seven days if it has not already been considered.
In order to give members a real opportunity to utilise the disallowance power, it is consequently provided in the legislation that any notice of motion to disallow a regulation which is given by a member of the Regulations Review Committee and is not dealt with by the House, automatically takes effect on the expiration of the twenty-first sitting day after it was given.
Only a member of the committee at the time notice is given, including a member who is a full non-voting member of the committee, can give a notice subject to the statutory automatic disallowance procedure. A replacement or temporary member or a member made a non-voting member for a particular inquiry cannot give a notice that entails automatic disallowance.
Unless the member withdraws such a notice, the House must, within 21 sitting days of the notice being given, attend to it and dispose of it. The obvious way to dispose of such a notice is to debate the motion and vote on it at the end of the debate. But a financial veto certificate also disposes of the notice of motion. Where a financial veto certificate is given before the motion for disallowance is moved, no question is put on the motion at the conclusion of the debate and the motion is ruled out of order without a vote.
At that point the motion has been dealt with by the House. Otherwise a notice of motion that is undisposed of after 21 sitting days takes effect according to its terms. If, before this period has fully run, Parliament is dissolved or expires, the notice of motion lapses.
(In this case a new notice could be given in the next session of Parliament and the 21 sitting days would begin to run anew from that point.) As business does not lapse on the prorogation of Parliament, a notice given in one session will continue to run in the new session.
To ensure that the House is aware that time is running towards automatic disallowance of a regulation, the Standing Orders provide that a notice of motion for disallowance given by a member of the Regulations Review Committee does not lapse and is not to be removed from the order paper until dealt with by the House.
A disallowance that occurs automatically on the expiration of 21 sitting days takes effect at that precise time or on any later date specified in the notice of motion for disallowance.
An automatic disallowance notice is printed and published as if it were a regulation.
The power to initiate the automatic disallowance procedure that is vested in each member of the Regulations Review Committee does not depend upon the regulation concerned having been the subject of an adverse report from that committee. Nevertheless, it is assumed that those members would act in a manner that is consistent with the conventions attaching to that committee before initiating such a procedure.
Complaints received by the Regulations Review Committee
The Standing Orders recognise that the Regulations Review Committee may receive complaints from persons or organisations aggrieved at the operation of a regulation. Any such complaint received by the committee must be placed on the agenda for its next meeting for the committee to decide whether, on the face of it, the complaint relates to one of the grounds on which the committee may draw a regulation to the attention of the House.
The committee must, unless it unanimously decides not to proceed with the complaint, give the complainant an opportunity to address the committee on the regulation.
In practice, the committee undertakes some initial investigation of complaints to establish if there is a case to answer before formally resolving whether to proceed with a more substantive inquiry.
Where, following its initial consideration, the committee considers that a complaint raises a prima facie case under one of the grounds for drawing a regulation to the House’s attention, this is regarded as requiring a formal inquiry.
It is obvious that a complaint has to relate to a regulation in force. But a complaint about a regulation that had not yet been made was still regarded as useful in focusing the committee’s attention on it when it was eventually promulgated.
The number of complaints received by the committee varies. During the course of 1999 the committee received nine complaints and resolved to investigate five of them. In 2000 only two complaints were received. The main reasons why complaints are not pursued by the committee is that they relate to policy issues or relate to an instrument that is not a regulation as defined.
Examination of regulations
All regulations are examined by the Regulations Review Committee.
But this was never intended to lead to a process of public hearings and submissions in all cases. For this reason the committee has the discretion to decide how it goes about discharging its responsibilities to the House.
The committee and its staff peruse all new regulations as soon as possible after they have been made. All regulations are formally noted at the committee’s regular meetings. If the committee has any concerns or wishes for further elucidation of a regulation, more details of the effects of the regulations are sought from the relevant Minister, department or other organisation. Often this will include obtaining a copy of any regulatory impact statement prepared in respect of the regulation.
Such inquiries may lead the committee to proceed to obtain further written information and may, in a few cases, result in a substantial inquiry involving the hearing of evidence and a report to the House.
In the course of 2004, 476 regulations were examined in this way.
This sifting process may also identify a number of regulations raising related issues that can be considered and reported on together.
The comprehensive check on regulations carried out by the committee, supplemented by issues drawn to the committee’s attention by complaints or by its consideration of draft regulations, alerts it to particular regulatory issues that require closer scrutiny.
Once the committee does decide to embark on an investigation, the fact that the regulation is revoked during the currency of the committee’s consideration of it does not put an end to the committee’s inquiry. The committee is obliged to consider whether to draw the House’s attention to the regulation before it, and this duty can be discharged notwithstanding that the regulation is no longer in force. Revocation is relevant to the practical question of whether, in fact, the House’s attention needs to be drawn to the regulation, but it does not obviate the question being asked at all.
But if a regulation is revoked before the committee resolves to conduct an investigation into it and the matter objected to is not included in new regulations, the matter is outside the committee’s jurisdiction.
Grounds for report to the House
In carrying out its work of examining regulations (however they may have come to its attention) the Regulations Review Committee judges regulations against nine criteria set out in the Standing Orders. A regulation is not necessarily bad because it fails to conform to one of these criteria. But, if it does fail to conform, the committee must consider whether to draw the special attention of the House to the regulation by reason of that non-conformity.
The committee has a discretion as to whether it should draw the House’s attention to a regulation even if it finds one of the grounds established. There may be good reasons for not drawing the House’s attention to a regulation – such as if this would have no practical effect whatever – and the committee must always consider this.
The committee has adopted the practice of making reports to the House informing it of its activities over a period (latterly annually). In this way the committee tends to inform the House of its consideration of all regulations that raised issues which it needed to address, even if the special attention of the House did not need to be drawn to them individually. A separate report drawing the House’s special attention to a regulation is reserved for those few regulations which raise issues of particular significance.
One thing that the committee does not purport to determine is the question of whether the regulation is outside the legal authority delegated by Parliament – that is, if the regulation is ultra vires. Such a question is for the courts, not the House, to determine.
Indeed, the committee’s grounds for examining a regulation are wider than those of a court.
From this it follows that while a court may have upheld the legality of a regulation, the committee is not precluded from inquiring further into it and examining its essential fairness.
Nor is the committee concerned with how a regulation is being administered by a government department,
though the Ombudsmen or another committee may be interested in this as a question of maladministration. However, if a regulation is being applied inconsistently or unfairly this may suggest that there is a defect in the regulation on which there may be grounds for the committee to report.
The nine grounds on which the committee may draw the special attention of the House to a regulation are examined below.
The regulation is not in accordance with the general objects and intentions of the statute under which it is made
This criterion comes closest to raising questions of ultra vires. Applying this ground to regulations involves construing the objects of the legislation authorising the making of the regulations in question. Thus, the committee took the view that the legislation under which the Reserve Bank was created was intended to constitute a central bank which advises the Government on and implements monetary policy. It was not the object of the Act to authorise the bank to engage in trading activities and so, the committee concluded, the House’s attention should be drawn to regulations that did so authorise such activities.
A particular concern of the committee has been regulations which impose fees. The committee takes pains to establish that a fee is clearly contemplated in the empowering legislation and that the fee is reasonable. The committee has put forward the view that a fee may be fixed at so high a level that it defeats the purposes of the Act and so is not in accordance with its objects and intentions. In the absence of clear statutory authority, if the fee recovered is greater than cost recovery for the service provided, there is a rebuttable presumption that Parliament could not have intended the holder of the delegated legislative power to be able to impose what is in effect a tax. This is especially the case where the “service” provided is effectively a monopoly.
(See also Chapter 33.) The committee considered that the provision of access to justice was among the general objects and intentions of statutes empowering the making of regulations that set civil court fees. Access to justice was so fundamental that a move to use fees to ration access would, in its view, require explicit legislative authority. Regulations were inappropriate instruments for implementing such a policy.
In another case the absence of any effective risk assessment being made before health labelling requirements were imposed on certain food products led the committee to conclude that the statutory preconditions to such labelling were not satisfied. Acknowledging that the Minister had a discretion to impose such requirements, the committee insisted that there must be some evidence to justify them.
Finally, powers to vary the commencement date of different provisions of an Act may provoke attention under this ground, if provisions of the Act that might be considered to be an integral part of the legislative package are not brought into force with the main body of the Act. In this case it may be that to bring into force parts of an Act, with the omission of important provisions, is to use the regulation-making power in a way that is not in accordance with the general objects and intentions of the Act.
The regulation trespasses unduly on personal rights and liberties
This was one of the original grounds for the scrutiny of regulations when a delegated legislation committee was first set up in 1962. It involves a two-part consideration. First, whether the regulations trespass against personal rights and liberties and, second, if any such trespass is “undue”.
Trespass on personal rights has been found to be a particularly applicable matter to consider with regulations which affect how persons are able to earn their living, for example, in cases where restrictions are placed on commercial enterprises. All laws in some respects inhibit freedom of action. Therefore, the fact that freedom is limited is not sufficient of itself to bring a regulation within this ground of complaint. The limitation must be balanced against the policy which is being furthered.
To enable it to do this, the committee has examined in some detail the technicalities of the subject matter of the regulations. Where regulations totally prohibited the commercial taking of rock lobster by diving or hand picking, the committee considered the purpose of the ban – the preservation of stocks – and compared this with the infringement of rock lobster fishers’ rights to earn a living. It concluded on the evidence that a total ban went further than was necessary to protect stocks and did trespass unduly on personal rights and liberties. The committee suggested a closed season on taking rock lobster.
This suggestion was subsequently implemented by the Government.
The reference to regulations trespassing “unduly” on personal rights and liberties has been interpreted as implying that there be a serious infringement of personal rights or liberties before the regulation can be seen as objectionable. In the case of civil aviation fee regulations before it, the committee concluded that it could not be suggested that there should be no fee at all. There was no evidence to suggest that the fee levels reflected inefficiencies on the part of the ministry and such cross-subsidies between different forms of flying as could be identified were justifiable. The committee, therefore, found no breach in that case.
But with court fees, since access to justice is a fundamental right, regulations may more readily be regarded as unduly trespassing on personal rights and liberties. The committee has concluded that if court fees are set at a level that discourages potential litigants and that mechanisms such as legal aid, concession rates, and fee waivers are not available to a large section of court users, then there would be an undue trespass on personal rights and liberties.
A relevant factor in determining whether regulations unduly trespass on personal rights and liberties is the policy of the Act under which the regulations are made. It may be the express policy of the legislation to place extensive restrictions on personal rights and liberties. Where this is the case, regulations that do nothing other than faithfully implement that policy are unlikely to be found to offend.
The regulation makes some unusual or unexpected use of the powers conferred by the statute under which it is made
This is also one of the original grounds established in 1962.
If the empowering Act itself expressly contemplates what the regulations do, then it is very difficult to take the view that the powers conferred have been used in an unusual or unexpected way. In the case of the regulations authorising tertiary legislation setting requirements for the grant of pilots’ licences, the principal Act specifically authorised such stipulations to be made by tertiary legislation. Regardless of the committee’s views on the desirability of such matters being dealt with under subdelegated powers, it could not be said that the regulations were open to objection on this ground. The committee did find, however, that in regulations dealing with a person’s livelihood it would expect to find provision for appeals against refusals to grant or renew licences and that the absence of such provision was an unexpected use of the power.
On the other hand, if the empowering Act does not explicitly provide for the matter which is the subject of the regulations, the committee may take the view that the regulations make an unusual or unexpected use of the power. The committee found that it was unusual or unexpected to use a power to set fees and charges to implement an accreditation system for surveyors, where the empowering provision did not itself contain any reference to such a system.
Where the empowering Act is drafted in very wide terms, it may be difficult to conclude that something has been included in regulations made under it that could not have been reasonably contemplated. For this reason the committee did not find a carless-days scheme and a weekend petrol sales ban to be unexpected or unusual uses of the powers conferred by the Act under which they were introduced. The width of the provisions in the Act led the committee to conclude that Parliament had intended to authorise the making of regulations going well beyond matters of administration.
This type of enactment, however, is very much the exception, otherwise the committee’s scrutiny under this ground would be futile. Conversely, the width of the provision in the regulation can lead to the conclusion that it does make an unexpected use of the power. So regulations imposing fees for survey services on persons who did not receive those services, fell foul of this ground.
The motivation behind the making of the regulations will often be an important consideration. When regulations were made principally by a desire to conform to Australian food-labelling standards (and this was not an object identified in the legislation) they were held to make an unexpected use of the power.
Another important consideration for the committee will be any explanation or justification that is given to the House for the regulation-making provision in the first place. Any use of the power that departs from such a reason or justification is prima facie unexpected. So where the explanatory note to a bill justified a power to bring legislation into force on different dates on the ground that regulations to implement the Act needed to be drafted, it was an unexpected use of the power to exempt a section from being brought into force because doubts had arisen as to its legal effectiveness.
When a regulation authorises something to be done, the absence of adequate provisions for notice of the doing of that thing can lead to the conclusion that the power is being used in an unexpected way. Regulations which enabled the Government to limit the remuneration of a company’s employees inescapably led to the assumption that notice of intention to invoke the regulation-making power would first be served on those affected. The extent of notice required will vary depending on the circumstances, but the total absence of a provision for notice was to make an unexpected or unusual use of that power.
In accordance with its general policy of looking critically at Henry VIII clauses, the committee has found that regulations overriding legislation passed subsequent to the Henry VIII clause made an unusual or unexpected use of that power.
The regulation unduly makes the rights and liberties of persons dependent upon administrative decisions which are not subject to review on their merits by a judicial or other independent tribunal
This ground principally relates to regulations conferring decision-making power on officials or bodies without making provision for a right of appeal or other review of the decision. Decisions taken under statutory powers are always subject to review by the courts to ensure that the statutory powers have been properly used, in the sense of being exercised within the express or implied terms of the statute. Judicial review can lead to an extensive and probing review of the original decision. But it does not permit the court to substitute its opinion on the merits of the decision for that of the person delegated with the statutory power to make that decision. For this reason judicial review is not necessarily an adequate alternative to conferring a right of appeal on which the merits of the decision can be re-examined. The committee will therefore look closely at regulations that do not contain appeal provisions in respect of administrative decisions taken under them.
The committee has recommended that regulations relating to domestic violence programmes should contain an appeal process so as to ensure that decisions made by approval panels were subject to independent analysis on their merits, particularly when a decision was made to remove an approval.
The distinctive aspect of this ground, then, is that the committee looks for what is not in the regulations rather than for what is there.
The regulation excludes the jurisdiction of the courts without explicit authorisation in the empowering statute
Provisions in legislation ousting the jurisdiction of the courts to review action taken under the legislation (privative clauses) are no longer common, not least because they have been found to be an ineffective means of excluding the courts’ jurisdiction. They are even less likely to be found in regulations. But regulations, while not expressly ousting the jurisdiction of the courts, may have this effect or tendency in practice and this has attracted the committee’s attention. Thus the committee has reported on the timing of regulations concerning payments for kiwifruit and the effect that they would have on proceedings currently before a court.
The committee has rejected an argument that this ground of review would apply if increased court fees created a potential barrier to access to the courts.
The regulation contains matter more appropriate for parliamentary enactment
This ground is relied on wherever the importance of the matter contained in the regulations suggests to the committee that it should have been enacted in primary legislation. The committee takes a pre-emptive approach in respect of this ground by subjecting proposed Henry VIII clauses to particular scrutiny in reporting to other committees on regulation-making provisions.
Regulations amending legislation, though authorised (as they must have been) by the empowering provision under which they are made, will still be scrutinised carefully by the committee. Such regulations may be justified, for example, where the legislation to be amended consists of lists of bodies in a schedule that requires to be constantly updated as new entities are created and old ones abolished.
One area that has been of particular concern to the committee on this ground has been producer board regulations. The various producer board Acts commonly confer wide powers to make delegated legislation to regulate primary industries. But the committee has still baulked at the width of the rearrangements effected by regulations, taking the view that it was more appropriate for such sweeping changes to have been introduced by primary legislation, not by regulation.
The regulation is retrospective where this is not expressly authorised by the empowering statute
In one case where this ground was considered, the committee held that a regulation that amended existing sharemilking agreements was not retrospective since the alterations it effected took effect from the date the regulation was made. The fact that the regulation altered the legal context in which agreements which had been negotiated would be played out was not sufficient to engage this ground. In any case the statute clearly authorised retrospectivity in this case.
The regulation was not made in compliance with particular notice and consultation procedures prescribed by statute
A regulation made without compliance with prescribed notice and consultation procedures will be subject to legal attack before a court. It is not the committee’s function to determine whether the Act’s requirements in these respects have been complied with. But the committee may assume that consultation is required even if there is legal doubt about this, and then proceed to judge whether it considers such consultation as did take place was adequate. In assessing this ground the committee has referred to legal standards: that the party consulted must be adequately informed so as to be able to make an intelligent or useful response and that the consultor, while entitled to have a working plan in mind, must keep his or her mind open and be ready to change the plan and even start afresh.
But the committee may make its own value judgment as to whether, in the circumstances, it considers the consultation that did take place was adequate, regardless of whether it was legally sufficient.
The committee has made particular recommendations for the principles to be followed for carrying out effective consultation before making deemed regulations. The Government responded that it would ask the Legislation Advisory Committee to consider these principles and produce guidance for consultation in respect of regulation-making generally.
For any other reason concerning its form or purport, the regulation calls for elucidation
“Purport” is taken to mean the literal meaning of the words used in the regulation, rather than its practical effect which, insofar as it can be considered, would fall under one of the earlier grounds. The committee has stated that this ground is included to cover situations where the language used in the regulations is ambiguous or so complicated as to be unclear.
If the public is expected to comply with regulations, it is reasonable to expect them to be drafted in plain, unambiguous language and for their format to aid comprehension.
This ground could also be invoked if there is a defect apparent on the face of the regulations which needs to be corrected.
But findings of substantive unreasonableness are not appropriate under this ground of review.
Thus, the committee has drawn the House’s attention to regulations where it considered that they should have contained a clear statement of their scope and purpose and should have specified the criteria to be applied in exercising a discretion to grant permits to operators to transport persons to view marine mammals.
It also upheld a complaint about rules imposing standards of vehicle window glazing because it considered sections of the rules to be confusing and ambiguous.
It is on this ground, too, that the committee has raised the question of the relationship between the regulation concerned and the New Zealand Bill of Rights Act, where the regulation might have had the effect of inhibiting an application for judicial review.
Other matters relating to regulations
As well as its brief in respect of examining regulations, draft regulations and regulation-making provisions in bills, the committee is empowered to bring any matter relating to regulations to the notice of the House.
This general authority has enabled the committee to conduct inquiries that fall outside the other specific powers it possesses. Significant exercises of this general power include its overall examination of regulation-making provisions when its consideration of individual provisions suggested that this was a desirable project. Among the important general reports it has made to the House are: the use of empowering provisions to override primary legislation (Henry VIII clauses);
on instruments deemed to be regulations;
on the constitutional principles to apply when Parliament empowers the Crown to charge fees by regulation;
on delays in bringing Acts of Parliament into force by Order in Council;
on the principles to be employed in determining when delegated legislation should be given the status of regulations;
and on the incorporation of material into regulations by reference.
The report on fee charging was used by the Controller and Auditor-General as a reference point in a review of revenue collected by departments from third parties.
This wide power has also enabled the committee to follow up inquiries it has already conducted and to report to the House what, if any, amendments have been made to regulations to meet concerns expressed by the committee in earlier reports.
The Regulations Review Committee is unusual in that it formally reports both to the Minister who referred draft regulations to it for consideration and to select committees about provisions in bills before them, as well as to the House. However, in practice, the committee includes in its periodic reports to the House summaries of its reports to Ministers and other select committees, so that all of its work is eventually recorded and reported on to the House.
Reports from the committee are presented in the same way as other select committee reports. The committee’s reports are set down as Members’ orders of the day.
Like other select committee reports that are set down for consideration, there is little chance of its reports being debated, and the order of the day is discharged 15 sitting days after the Government’s response to it is presented (if it requires a response) and 15 sitting days after being placed on the order paper in other cases.
As with reports from other committees, the Government is obliged to present a response on recommendations addressed to it in a Regulations Review Committee report within 90 days of the report being presented.
The committee has shown that it will not be easily satisfied by a response that does not adequately address the matters contained in its report. It has written to the Minister concerned expressing its dissatisfaction with a Government response,
and on occasions has launched further inquiries because of the inadequacy of responses received to earlier recommendations. Following the committee’s inquiry into geothermal energy regulations it protested that the Government response totally failed to address the issues it had raised.
Where the Government’s response to a report on Reserve Bank regulations had been presented out of time, the committee reported that this delay had effectively circumvented the work of the committee, since in the meantime legislation had been introduced dealing with the point in issue. The committee also considered that the response had misunderstood the committee’s concerns and was in any event inadequate.
The committee also issued a report following up the Government’s response to its report on Henry VIII clauses, reiterating and elaborating on its views in respect of two of its recommendations that had been rejected by the Government.