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Subordinate Legislation in New Zealand

11 October 2013

Reviewed by Sir Geoffrey Palmer QC

A significant segment of New Zealand public law revolves around subordinate legislation. Whether the particular instruments are regulations, “deemed regulations”, orders-in-council or by-laws, their legal effect can be vital to the interests of clients and a source of difficulty for their legal advisers. Such instruments are not as secure from challenge as statutes, but the avenues of challenge and the methods for doing it are not familiar to many lawyers.

Subordinate Legislation in New Zealand by Ross Carter, Jason McHerron and Ryan Malone reveals, in an authoritative and accessible manner, the many mysteries that reside in this area of the law. Further, the book has the added advantage of being admirably concise, while at the same time being fully footnoted and referenced. The book has an excellent index.

New Zealand has a chequered history with this species of law. In the words of Sir Douglas Kidd, a former chair of the Regulations Review Select Committee of Parliament, the parliamentary watchdog for many species of subordinate legislation, governments of all political stripes are “congenital sinners” in their use of subordinate legislation. All governments, he said in a lecture in 2001, have a tendency “to stray from the paths of constitutional righteousness seduced by the sirens of power, efficiency, and convenience.”

The sweeping powers of the Economic Stabilisation Act 1948, now happily repealed, gave governments power to regulate every facet of economic activity, prices, remuneration and interest rates. As my granddaughters would say: “Awesome.” It was the use of these powers in the 1970s and early 1980s that led to comparisons of New Zealand with Albania! After 1989 the rapid development of the use of “deemed regulations” posed a fresh set of challenges to constitutional orthodoxy.

Professor Denis Pearce, then of the Australian National University, covered New Zealand subordinate legislation in his text Delegated Legislation in Australia and New Zealand, first published in 1977. That book is now in its fourth edition, with that happily named lawyer Stephen Argument joining as a co-author of the book some years ago. The book has long since given up dealing with New Zealand law. It is understandable why the Australian authors dropped coverage of New Zealand. Here in the last 25 years big developments have occurred in the field of subordinate legislation. And Australian public law exhibits very different features compared with that in New Zealand due to three factors: the Australian Constitution Act, federalism and the Commonwealth’s system of administrative decisions and appeals from them.

Since the establishment of the Regulations Review Committee in 1985 coupled with the passage of the Regulations (Disallowance) Act 1989, a significant body of jurisprudence has developed in New Zealand, through the reports of the committee. The grounds upon which the committee can entertain complaints from the public about subordinate legislation are wide. The sanction of disallowance of a regulation, in whole or in part, by a motion in the House could be seen as a significant deterrent against the abuse of delegated legislation by the Executive Government. Yet Parliament has been singularly reluctant to use its powers in that respect, preferring to draw defective regulations to the special attention of the House in a report and wait for the Executive to effect a cure. Sometimes it does and sometimes it does not. The tenderness toward executive power in New Zealand dies hard. But there is good news. In 2013 for the first time a motion to disallow succeeded in the House, a mere 24 years after the House secured that power. The regulations concerned were the Road User Charges (Transitional Matters) Regulations 2012, which the committee found contained matters more appropriate for parliamentary enactment. The book charts all of the motions for disallowance at pp203-205. It is important to note that the Legislation Act 2012 re-enacts the provisions of the Regulations (Disallowance) Act 1989, but with a much improved definition of “disallowable instruments”.

The Regulations Review Committee Digest, prepared by the New Zealand Centre for Public Law at Victoria University of Wellington, has been a great boon for both lawyers and officials in mining the jurisprudence of the committee. It would seem to me that the committee may have become a more effective guardian of the constitutional proprieties of the use of subordinate legislation than the courts, where challenges on the grounds of ultra vires seems much less common than they were in the 1930s to the 1960s. My favourite New Zealand case has always been Reade v Smith [1959] NZLR 996 in which Justice Turner was resolute against the bureaucratic forces of school zoning. The tendency for court challenges to be declining may be explained, however, by the fact that regulations are now drafted by Parliamentary Counsel in New Zealand. This does not occur in most other jurisdictions, and the Parliamentary Counsel must certify that the instrument is within power.

The quality of this book is high and it covers all bases. The explanation lies in the complementary backgrounds of the three authors. Ross Carter is an experienced Parliamentary Counsel. Jason McHerron is a Wellington practitioner who has had experience advising the Crown. Dr Ryan Malone was the compiler of the Regulations Review Committee Digest. This has turned out to be a most happy combination and has resulted in an excellent book of great practical importance.

Subordinate Legislation in New Zealand, LexisNexis NZ Ltd, August 2013, 978-1-927149-59-1, 376 pages, paperback and e-book, $126.50 (GST incl, p&h excl).

Sir Geoffrey Palmer QC practises from Harbour Chambers in Wellington. He is a former Prime Minister, Attorney-General and Minister of Justice and was President of the Law Commission from 2005 to 2010. He has written and lectured extensively on the law and New Zealand’s constitution.

Last updated on the 17th March 2016