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Speech: Young - Scrutiny of Bills

Seventh Australasian & Pacific Conference on Delegated
Legislation and Fourth Australasian & Pacific
Conference on the Scrutiny of Bills

Report from the New Zealand Regulations Review Committee

Annabel Young, MP

Introductory comments

Thank you for your introduction Chairman, and to the New South Wales Parliament for welcoming us to this conference. It is a pleasure to be representing the New Zealand Regulations Review Committee along with our chairperson, the Right Honourable Jonathan Hunt and our staff members, Debbie Angus and Shelley Banks.

When two of my colleagues, Jill White and the Honourable Georgina te Heuheu, attended the last conference in Adelaide two years ago, our committee had been meeting only five months under New Zealand=s first MMP elected Parliament. Since that time, Georgina has been elevated to Cabinet as the Minister for Courts, Minister of Women=s Affairs, Associate Minister in Charge of Treaty Negotiations and Associate Minister of Health. Jill White was elected as the Mayor of Palmerston North and left Parliament to take up that position.
I am sure that we are able to relay the good wishes of this conference to the Honourable Georgina te Heuheu and Mayor White. The Honourable Georgina te Heuheu has impressed everyone with the way she has succeeded as a Minister, even though she was appointed in her first term in Parliament. I like to think the training she received as a member of the Regulations Review Committee has stood her in good stead. Certainly, we have had no complaints about any of her regulations.

Since the last conference we have been a busy committee and have completed some significant pieces of work, including seventeen reports to the House.

The New Zealand Regulations Review Committee has eight permanent members, and by tradition, has an Opposition chairperson. When committees were established in March 1997, their membership reflected the proportionality of seats held by parties in the House. Since the election, a number of MPs have resigned from the parties they were elected to represent in Parliament. Also, the original constitution of the committee reflected the coalition government which no longer exists. These changes have affected the proportionality of membership of all select committees. Generally we are able to reach a non-partisan conclusion so, in practice, I believe that we are less affected by these changes than the other select committees.


The Regulations Review Committee has several functions under the Standing Orders of the House of Representatives.


Scrutiny

The first is the scrutiny of all regulations, including instruments that are >deemed= to be regulations by their empowering legislation. Scrutiny of regulations is the core work of our committee. During 1998 we scrutinised 620 regulations and deemed regulations, the largest number made so far in a single year. We examine regulations under a number of grounds listed in the Standing Orders. Our grounds are similar to those of most Australian committees.

Deemed regulations do not necessarily have the same pre-promulgation controls as traditional regulations, such as Cabinet scrutiny, drafting within the Parliamentary Counsel Office, and publication in the annual Statutory Regulations series. On Friday afternoon our chairperson, Rt Hon Jonathan Hunt, will present the findings of our recently reported inquiry into deemed regulations.

We also scrutinise regulation-making powers in bills before other select committees and may report to the committee considering a bill. While our recommendations are not always followed, we are seen as having considerable expertise in this area. Some useful amendments have been included in bills reported back to the House, in light of our recommendations. For example, the inclusion of a requirement to consult before making regulations which imposed charges on particular users in the Rating Valuations Act 1998. Last year we made nine reports to other committees on regulation-making powers in bills.

While the majority of our work remains the scrutiny of regulations, we have noticed particular growth in several areas in the past two years.


Complaints

We are spending an increasing proportion of our time examining complaints from members of the public. So far in this Parliament, we=ve investigated eleven complaints, eight of which were reported to the House.

Our complaints jurisdiction provides some of our most interesting and rewarding work. Sitting in the complaints role, the committee takes on some of the flavour of an Appeal Court, with eight MP=s sitting as judges. Usually the complainants are represented by counsel. Sometimes the complainants are represented by many counsel and the total cost of the lawyers in the room does not bear thinking about.

Lawyers are used to the judges being a captive audience so they are somewhat taken aback to discover that the MPs are entering and leaving in the middle of their submissions as the dictates of the House call upon them. Unlike a Court, the counsel cannot rely on the MPs having heard their entire argument. The fact that the committee presents a coherent summary of the evidence is a clear demonstration of the ability of the staff to provide a clear complete record of our proceedings and keep the MPs on the right track.

Complaints are the most unpredictable of our functions. Acting in this jurisdiction we have examined complaints from Chinese acupuncturists, bee-product manufacturers, window tinters, family lawyers, and scampi fishers to name a few. Our biggest complaints (judged by dollar value) have multi-millions of dollars at stake. Most of the complaints have very large sums at stake.

I understand that our complaints procedure differs from the Australian equivalents so I will outline our procedure in some detail and then comment on one example of a complaint we considered.

When a person or organisation aggrieved at the operation of a regulation makes a complaint to us, the complaint must be given initial consideration at our next meeting. Unless we decide, by leave, to proceed no further with the complaint, the person or organisation concerned is given an opportunity to address us on the regulation. In practice we usually hear from a complainant unless:

the complaint doesn=t identify a particular regulation; or

the complaint primarily raises policy issues that it would be inappropriate for us to examine.

No timing restrictions apply to our complaints jurisdiction. We can investigate a complaint at any time after the regulations are made. In many cases complaints are made shortly after the regulations have come into force. The complainant may have opposed the measures during consultation on the draft regulations. When it becomes apparent the regulations have not been amended in line with their submissions, the person or organisation may lodge a complaint with our committee.

On other occasions, regulations have been in force for some time before problems with their operation are drawn to our attention.

We are not prevented from investigating a complaint even if we have already examined the regulations under our scrutiny function and found no issues of concern on the face of the regulations.


Window glazing complaint - a typical example

The window glazing complaint illustrates our complaints process. The glazing rule sets out the requirements that must be met by motor vehicle glazing. The International Window Film Association of Australasia asked us to test the practical effect of allowing window tinting on the front side windows of motor vehicles, banned by the glazing rule - a land transport rule made by the Minister of Transport. This is an example of a deemed regulation. The complaint raised issues under four of the grounds under which we examine regulations.

Not in accordance with the general objects and intentions of the Act

The industry claimed that the glazing rule was not in accordance with the general objects and intentions of the Act because there was insufficient scientific and technical evidence to support the safety concerns addressed by the rule. The Minister disagreed, believing the evidence he had was sufficient. We did not uphold the complaint on this ground, considering that the Minister had access to information on overseas standards, safety considerations and the costs of implementing the rule. The Minister was entitled to use his discretion in deciding the weight to be given to competing considerations.

Undue trespass on personal rights and liberties

The industry argued that the glazing rule trespassed unduly on personal rights and liberties. It argued that the rule adversely affected the right of its members to earn a living, saying 15 businesses had closed and approximately 40 jobs were lost because of decreased sales since the rule came into force. They also submitted that the rule adversely affected consumer choice - the right to have tinting on both the front and back side-windows. We did not consider that the effect of the rule amounted to an Aundue@ trespass on personal rights and liberties. While the rule affected the rights of industry participants, we concluded these rights had to be weighed against the rights of other road users, particularly pedestrians and cyclists.

Unusual or unexpected use of powers in the Act

The industry argued that the rule did not reflect international standards. Therefore, it represented an unusual and unexpected use of the rule-making power in the Act. It argued that most Australian states and approximately 40 American states allowed less conservative window glazing restrictions than New Zealand. The Minister told us that at the time the rule was made, the limits proposed were consistent with those in Victoria, the Australian state with road conditions most similar to New Zealand=s. Some time after the New Zealand rule was made, Victoria amended its rule in line with other Australian states. We concluded there was information available to the Minister that safety factors and international practice supported the limits prescribed in the rule. The Minister was entitled to favour safety considerations over other factors. Therefore, the complaint was unsuccessful on this ground.

Form and purport unreasonable

It was submitted that the form and purport of the glazing rule was unreasonable because it contained a number of exceptions and anomalous applications. We upheld the complaint on this ground finding that the sections of the rule, which prescribed the responsibilities of vehicle operators, were drafted in a way that was confusing and ambiguous.
The industry found the rule difficult to interpret, relying on supplementary AFact sheets@ prepared by the department instead of the actual rule. In our view this was unsatisfactory. We recommended that the rule be redrafted to clarify operators= responsibilities. We also asked the Minister to review the window glazing limits in light of changes in international practice since the rule came into force. The Government=s response to the recommendations in our report agreed to review international changes and redraft the rule. Following consultation, the Minister agreed to refer the revised draft rule to us for consideration.

In a number of cases, the effect of the complaint is to encourage the Minister to consider changing the regulations. This may be because he or she (usually he) has Aseen the light@ but it is more likely that the motivation is a wish to avoid a reprimand from the committee.


Draft regulations

If a complaint addresses a regulation that has not yet come into force, we may write to the responsible Minister and invite her or him to refer the draft regulation to us for pre-promulgation scrutiny. The consideration of draft regulations is a separate function of the committee provided for in the Standing Orders. Ministers have a discretion whether or not to comply with our request. If draft regulations are referred to us, any report we make would be to the Minister rather than the House.

This jurisdiction has been exercised more often in the past two years. Since we presented the window glazing report, we have reached a unique arrangement with the Minister of Transport that he will refer all draft civil aviation, maritime transport and land transport rules to us for consideration before they are made. The Minister refers draft rules at the Awhite@ draft stage, following public consultation, but before they are finalised.

The Minister wanted to ensure that our consideration of draft rules would not unduly delay the rule-making process. He now indicates a time-frame within which he would like us to report. We decided that if the time-frame for considering a draft rule is too tight, we may prefer to wait until the rule is promulgated before examining it. Our primary consideration is that our examination should be meaningful. We have pointed out that our examination of draft rules does not preclude us from examining rules again under our scrutiny function, once they are made, or from considering a complaint made about a particular rule.


Minority Government

In New Zealand, the regulations review process gets about two lines in the average four-year law degree. Most lawyers do not know that the committee exists and therefore they do not know how effective an appeal to the committee can be. Within Parliament, the Regulations Review Committee was traditionally regarded as a committee for lawyers, a specialists committee writing boffin reports about esoteric aspects of legislation.

Minority government has cast a new light onto the Regulations Review Committee. This arises from two quite different things. Firstly, a committee dominated by the Opposition is more likely to criticise Government bills and regulations. In practice, the approach taken is generally non-partisan, but the possibility of criticism does tend to focus the mind of the Minister and his or her officials.

Secondly, and more importantly, members of the Regulations Review Committee have a special power to move the disallowance of any regulation in the House. This right can be exercised by any permanent member of the committee, in respect of any regulation, on any sitting day.

Once the disallowance motion is moved, the House must deal with that motion within 21 sitting days or the regulation is automatically disallowed. In a minority government, the Government cannot assume that a disallowance motion will be voted down. This means that the opposition MPs who are members of the Regulations Review Committee have much greater power when there is a minority government. This is an aspect of the committee that I believe the New Zealand legislature is only now beginning to appreciate and understand.

After all, it is this power of the Regulations Review Committee which prevents minority government from side-lining Parliament and ruling by regulations alone. Suddenly, the committee is the centre of constitutional protection and not just a resting home for overly-erudite lawyers.

Mr Chairman, ladies and gentlemen, it is great to be here with like-minded legislators who understand the importance of this seemingly dry subject.

Thank you for your attention

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