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CHAPTER 28

Delegated Legislation

Most of the legislation enacted each year is not made by Parliament directly. It is made by other people or bodies under powers delegated to them by Parliament. In this chapter, the term "delegated legislation" is used to describe all types of legislation made under powers delegated by Parliament. Such legislation is also often referred to as "subordinate legislation". Legislation of this kind may take various forms, which are discussed in detail below. 1 In contrast to the enactment of legislation by Parliament, there are no general procedures for ensuring that delegated legislation is subjected to public debate and scrutiny before it is made. However, some of the statutes that empower the making of delegated legislation require certain procedures to be followed before it is made. For example, there may be a requirement to consult entities uniquely affected by a regulation before it is made. 2

Statutes may also require a Minister to consult

appropriately before recommending the making of certain regulations. 3 Generally, neither Parliament nor the House plays any part in the actual making of delegated legislation. Parliament has played its part by passing the legislation conferring the power to make the delegated legislation. The exercise of this power is in the hands of another authority.

MEANING OF DELEGATED LEGISLATION

Delegated legislation may take many forms. Standing Orders use the term "regulation" to describe delegated legislation, and define this as meaning any delegated legislation, including legislative instruments and disallowable instruments within the meaning of the Legislation Act 2012. 4

The word "regulation" is also

defined in the Interpretation Act 1999 and captures the variety of instruments. 5 In this chapter the term "regulations" is used primarily in respect of the activities of the Regulations Review Committee, as the definition of "regulations" in the Standing Orders governs the scope of the committee's jurisdiction in respect of the scrutiny of delegated legislation.

1 For further discussion of delegated, or subordinate, legislation, see Ross Carter, Jason McHerron

and Ryan Malone

Subordinate Legislation in New Zealand

(LexisNexis, Wellington, 2013); and

Ross Carter

Burrows and Carter Statute Law in New Zealand

(5th ed, LexisNexis, Wellington, 2015) at 14-17.

2 See, for example: Financial Markets Conduct Act 2013, s 549 and Telecommunications Act 1991,

s 69N(2).

3 For example: Health and Safety at Work Act 2015, s 222(2) and Climate Change Response Act 2002, s 247.

4 SO 3.

5 See: Interpretation Act 1999, s 29.

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Parliamentary Practice in New Zealand460

The Legislation Act 2012 does not use the term "regulations". Instead it intro- duced the term "disallowable instrument" to describe delegated legislation that must be presented to the House and can be disallowed by the House. Disallowable instruments are legislative instruments, instruments that are stated by their empowering Act to be disallowable and instruments that have significant legislative effect. 6 Legislative instruments used to be referred to as statutory regulations; most are made by Order in Council, and all are published in the annual series of legislative instruments. 7 Legislative instruments are almost always also disallow- able instruments, but a few are specified by their empowering legislation not to be. 8 A unique form of delegated legislation is confirmable instruments. These are instruments made under an empowering provision that specifies that instruments made under it lapse at a deadline unless earlier confirmed by an Act of Parliament. Empowering provisions that authorise the making of confirmable instruments are listed in Schedule 2 of the Legislation Act 2012. The Regulations Review Committee examines disallowable instruments as a matter of course, but can examine any delegated legislation, regardless of whether or not it is a disallowable instrument. 9

It is for the committee to decide whether an

instrument falls within its jurisdiction. 10

PARLIAMENTARY REVIEW OF DELEGATED LEGISLATION

The importance of delegated legislation, the limited opportunities for its prior scrutiny, and the negligible parliamentary role in relation to it 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 often necessary in the interests of efficient administration. The committee did not agree that delegated legislation was wholly or even substantially bad in itself; rather, it saw it as an inevitable and necessary aspect of parliamentary government. 11 This fundamental acceptance of the need for delegated legislation has not been challenged. Nevertheless, although 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, the Statutes Revision Committee, with an express brief to report 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. The House invariably referred bills of a technical legal character (which tended to be criminal, company and courts legislation) to the committee for consideration, whereas between 1962 and 1985 it referred only 11 regulations to the committee. 12

So 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 ineffec- tuality of parliamentary arrangements for dealing with it led to pressure from the

6 See: Legislation Act 2012, s 38. Significant legislative effect is defined at s 39.

7 Legislation Act 2012, s 4.

8 See, for example: Remuneration Authority Act 1977, s 12B(9) and Members of Parliament

(Remuneration and Services) Act 2013, s 17(3).

9 SOs 3 and 318.

10 Regulations Review Committee Complaint regarding Fisheries (Declaration of New Stocks Subject to Quota Management System) Notice (No 2) 2002 (5 September 2003) [2002-2005] AJHR I.16C at 4 (committee decided a fisheries notice declaring stock subject to the quota management system

was a regulation within the meaning of the Regulations (Disallowance) Act 1989).

11 Delegated Legislation Committee, report (7 June 1962) [1962] AJHR I.18.

12 Statutes Revision Committee First report on delegated legislation (14 June 1985) [1984-1985] AJHR I.5A at [4.2].

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461Delegated Legislation

House for a more focused approach to it. In 1985, following a fresh look at possible arrangements, 13 the House decided to establish a select committee to 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. These committees can therefore examine delegated legislation falling within their terms of reference. 14

A subject select committee, rather than the

Regulations Review Committee, is the appropriate medium for the examination of delegated legislation on policy grounds. R

EGULATIONS REVIEW COMMITTEE

The Regulations Review Committee is a committee that the House under its Standing Orders establishes at the commencement of each Parliament. 15 The committee examines all regulations and all provisions in bills before other committees that relate to regulations. 16

In addition, the committee may examine

draft regulations referred to it by a Minister, 17 consider any matter relating to regulations on which it wishes to report to the House, 18 and investigate complaints made to it about the operation of regulations. 19 The Regulations Review Committee was the first committee (in 1985) to be chaired by an Opposition member, and such a chairperson has now become an established convention. 20

The committee meets regularly each week when

the House is sitting and occasionally during adjournments too. Its committee secretariat includes lawyers from the Office of the Clerk who provide the committee with independent legal advice 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 way in scrutinising 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 the policy. It is for the House and the subject select committees to address the policy aspects or merits of regulations. The committee therefore does not question the policy underlying the regulations that it scrutinises. 21
The committee's role regarding the various 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 available on the Victoria University of Wellington website. 22

13 Statutes Revision Committee Orders of the House (17 August 1984) [1984-1985] AJHR I.5 at 2.

14 SO 189(2).

15 SO 184(1)(b).

16 SO 318(1), (3).

17 SO 318(2).

18 SO 318(4).

19 SO 318(5).

20 Regulations Review Committee Inquiry into instruments deemed to be regulations - An examination of

delegated legislation (6 July 1999) [1996-1999] AJHR I.16R at 8.

21 Statutes Revision Committee First report on delegated legislation (14 June 1985) [1984-1985]

AJHR I.5A at [8.4]; Regulations Review Committee

Regulation making powers in legislation

(4 February 1987) [1986-1987] AJHR I.16A at [8.2]; Regulations Review Committee

Report on the

activities of the committee from 28

November 1990 to 31 March 1992

(18 August 1992) [1991-1993]

AJHR I.16E at 33; Regulations Review Committee

Inquiry into instruments deemed to be regulations -

An examination of delegated legislation

(6 July 1999) [1996-1999] AJHR I.16R at 9; Regulations

Review Committee

Investigation into the Land Transport (Driver Licensing and Driver Testing Fees) Regulations 1999 and the Land Transport (Driver Licensing) Rule 1999 (24 August 1999) [1996-1999]

AJHR I.16T at 6.

22 See (under "Publications").

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Parliamentary Practice in New Zealand462

JUDICIAL REVIEW OF DELEGATED LEGISLATION

As delegated legislation involves Parliament conferring on another person or body legal power to make legislation, it is appropriate for the House to limit jealously the extent to which it gives such delegated authority, and to monitor its exercise closely. Since the reforms of 1985 the House has endeavoured to make parliamentary control of delegated legislation more effective. But there is another longer-standing method of reviewing delegated legislation - that exercised by the courts. The courts do not question the validity of a duly enacted Act of Parliament. But delegated legislation can be subject to challenge in the courts on the ground of invalidity. As delegated legislation owes its existence to a statutory power, if its provisions exceed that power (that is, the delegated legislation is ultra vires) it is invalid, and of no lawful effect. Delegated legislation may also be invalid if a special procedure - for example, consultation with interested parties - is prescribed to be followed before its making and this procedure has not been observed. The courts' powers to review delegated legislation to ensure that its making complies with the enabling Act may themselves be limited by Parliament. Provisions in Acts of Parliament that seek to inhibit the courts' power to rule on the validity of delegated legislation may operate directly by prohibiting a court from reviewing the validity of delegated legislation made under the Act, or indirectly by conferring the power to make delegated legislation in such broad and 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 DELEGATED LEGISLATION

Delegated legislation 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. 23
The Human Rights Review Tribunal may issue a declaration that delegated legislation is inconsistent with the freedom from discrimination guaranteed by the New Zealand Bill of Rights Act. 24

If such a declaration is made, the Minister

responsible for the administration of the delegated legislation must report to the House, bringing the declaration to its attention and advising of the Government's response to it. 25
Review of delegated legislation 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. (See "Grounds for report to the House", p 480.) PRIMARY LEGISLATION AUTHORISING THE MAKING OF DELEGATED LEGISLATION

Principles

Parliamentary control of delegated legislation begins with close consideration of the provision that delegates the power to make such legislation. This power is set out in primary legislation and is known as a regulation-making power or an empowering provision. 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 whether the power is necessary and appropriate.

23 Human Rights Act 1993, s 92B(1)(b).

24 Human Rights Act 1993, s 92J.

25 Human Rights Act 1993, s 92K.

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463Delegated Legislation

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 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. Specifically, the committee considered that primary, not delegated, legislation should be the means by which: 26
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 have not been specifically endorsed by the House and are not rules that bind those preparing primary legislation or committees considering bills. However, they provide a background against which proposals for delegated legislative powers can be judged in the course of the legislative process, and they are likely to inform the Regulations Review Committee's contribution to the process. They are also reflected in the Legislation Advisory Committee guidelines. 27
Power of the Regulations Review Committee to report on legislative proposals In 1986 the Regulations Review Committee was given the power to report, on its own initiative, to any other committee on an empowering provision in a bill before that committee 28
and any matter relating to regulations. 29
For this purpose the committee examines every bill that has received a first reading and been referred to a select committee. It makes its legal advisers available to subject committees to present and explain the reports and answer questions. 30
The committee thus assumes an advocacy role in the legislative process for the principles of delegated legislation that it has established. As well as having the right to intervene in the legislative process, the committee is sometimes 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. 31
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 subject committee. 32

The committee has recommended that

all committees seek its advice on any new regulation-making powers they are considering recommending for insertion into a bill, and on any significant changes that a committee is considering recommending to a regulation-making power in a bill. 33

26 Regulations Review Committee Inquiry into principles determining whether delegated legislation is

given the status of regulations (30 June 2004) [2002-2005] AJHR I.16E at 25.

27 Legislation Advisory Committee Guidelines 2014 at [13.1].

28 (19 November 1986) [1986-1987] JHR 436.

29 SO 318(3).

30 Regulations Review Committee Activities of the Regulations Review Committee during 2003 (15 June 2004) [2002-2005] AJHR I.16D at 19.

31 Border Security Bill (53-2) (commentary, 10 March 2004) at 31-32 ([2002-2005] AJHR I.22C at

513-514) and Regulations Review Committee

Activities of the Regulations Review Committee during

2003 (15 June 2004) [2002-2005] AJHR I.16D at 26; Health (Screening Programmes) Amendment

Bill (214-2) (commentary, 22 September 2003) at 7 ([2002-2005] AJHR I.22B at 575) and Regulations

Review Committee

Activities of the Regulations Review Committee during 2003 (15 June 2004) [2002-2005] AJHR I.16D at 23.

32 Health Committee International treaty examination of the agreement between the Government of

New Zealand and the Government of Australia for the establishment of a joint scheme for the regulation

of therapeutic products (18 June 2004) [2002-2005] AJHR I.22C at 699 and App B.

33 Regulations Review Committee Investigation into the Road User Charges (Transitional Exemption for

Certain Farmers' Vehicles) Regulations 2013 (SR 2013/10) (12 August 2013) at 2 ([2011-2014] AJHR

I.22B at 1118).

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Parliamentary Practice in New Zealand464

The committee's reports to other committees are summarised or noted in its periodic reports to the House, known as activities reports.

Outcomes of committee reports

The committee's reports to subject select committees on regulation-making powers are merely recommendations. It is for the subject committees to decide whether to adopt them and recommend amendments to the bills to reflect them. Subject select committees may come to a different conclusion from the Regulations Review Committee on a regulation-making provision; though the Regulations Review Committee may ask the committee to reconsider the matter, 34
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. 35

Ultimately,

whether to amend a regulation-making provision is a matter for the judgement of the House. The ability of the Regulations Review Committee to focus committees' attention on regulation-making powers allows it to raise questions about the propriety of delegated legislation that may not otherwise arise, and has led to a number of changes to legislation passed by the House. 36

Regulation-making provisions

In 1962, 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 Chief Law Draftsman (now Chief Parliamentary Counsel). The formula was designed to conform to the committee's ideal of a provision that 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. From time to time the Regulations Review Committee expresses its views on the drafting style of regulation-making powers. 37

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. Although the committee's examination is not confined to the scrutiny grounds set out in the

Standing Orders,

38
those grounds provide a useful test: would delegated legislation made under the empowering provision under review potentially transgress any of the grounds? The committee's examination also considers whether regulation- making powers infringe well-established principles applying to delegated legislation, such as 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 delegated legislation, for an Act itself to be amended, suspended or overridden by delegated legislation (a "Henry VIII" clause; see below), 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. 39

34 Regulations Review Committee Activities of the Committee from 1 April 1992 to 23 September 1993

(30

September 1993) [1991-1993] AJHR I.16L at [124].

35 Regulations Review Committee Activities of the Regulations Review Committee during 2000 (28 March 2002) [1999-2002] AJHR I.16I at 38; Regulations Review Committee Activities of the

Regulations Review Committee during 2001

(6 May 2002) [1999-2002] AJHR I.16J at 34, 40-41.

36 In the first half of 2014, it recommended amendments to 16 bills. Of the six bills that were enacted,

five incorporated at least some of the recommendations made by the Regulations Review Committee.

37 Regulations Review Committee Activities of the Regulations Review Committee during 2000

(28 March 2002) [1999-2002] AJHR I.16I at 34; Regulations Review Committee

Investigation into

unpresented deemed regulations (9 August 2006) [2005-2008] AJHR I.16E at 5.

38 SO 319(2).

39 Regulations Review Committee Activities of the Regulations Review Committee in 2014 (8 August 2014) [2011-2014] AJHR I.16I at 14; Regulations Review Committee Activities of the Regulations Review Committee in 2004 (20 April 2005) [2002-2005] AJHR I.16I at 18.

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465Delegated Legislation

Each year, the committee raises concerns about a significant number of regulation-making powers. The grounds on which it has done so have been various. In some cases the committee has been concerned about the process by which powers created by the empowering provision would be exercised. Where the exercise of powers would not be by Order in Council and the committee considered that it should be, it recommended accordingly. 40

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 importance (the fixing of levies). 41

Amongst other things, the committee has

objected to empowering provisions that would have: allowed an Order in Council to override provisions of an Act 42
applied the provisions of one Act to another "with modifications" 43
had a retrospective effect 44

allowed a Government to use regulations to manage the application of an Act throughout its five-year lifetime

45
reduced the jurisdiction of the courts to determine the validity of any regulations made under it.quotesdbs_dbs22.pdfusesText_28

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