Chapter 13: Form or Purport Calls for Elucidation: SO 327(2)(i)

327     Drawing attention to a regulation

(1) In examining a regulation, the committee considers whether it ought to be drawn to the special attention of the House on one or more of the grounds set out in paragraph (2).

(2) The grounds are, that the regulation—


(i) for any other reason concerning its form or purport, calls for elucidation.

SO 319(2)(i) (September 2014 to October 2020)
SO 315(2)(i) (October 2011 to August 2014)
SO 310(2)(i) (September 2008 to October 2011)
SO 315(2)(i) (August 2005 to September 2008)

Regulations can have a significant impact on the rights and obligations of people and organisations. It is crucial, therefore, that regulations are expressed in a clear and precise manner. Delegated legislation must be couched in terms that allow people to clearly understand what is required to comply with the law. Thus, the Committee may find a breach of this Standing Order ground where a regulation is ambiguous, not in clear English, requires clarification, or fails to contain a necessary component such as criteria upon which decisions are made.

The words “for any other reason” in Standing Order 327(2)(i) might suggest that this is a catch-all or “omnibus” ground that is breached when a regulation is improper but does not breach any of the eight other Standing Order grounds. On the contrary, it is limited to those regulations whose “form or purport” is objectionable or improper. This distinction was made by the Committee in its investigation into the Land Transport Rule 32012 - Vehicle Standards (Glazing). In its report the Committee stated:335

We agree with the Crown that findings of substantive unreasonableness are not appropriate under this ground of the Standing Orders. Findings should be restricted to the clarity of the language of the Rule itself, rather than the substance of the Rule.

Land Transport Rule 32012 imposed limits on the levels of window tinting for certain vehicles. The complainants argued that this Standing Order ground was breached because the limits were unreasonable, anomalous in their application, and failed to take into account different driving tasks and visibility factors. The Committee rejected this submission on the basis that these concerns went to the substance of the Rule. The Committee did, however, make a finding that the ground had been breached because the Rule had been drafted in a way that was confusing and ambiguous. Evidence was put before the Committee that the window glazing industry had to rely on fact sheets prepared by the Land Transport Safety Authority to interpret the rule. The Committee recommended that the Rule be amended to clarify the exact restrictions it imposed.

The reports of the Committee provide several other instances where regulations required clarification. In one instance, the regulations allowed the Accident Compensation Corporation to make a payment in crisis situations to counsellors for services not provided on a face-to-face basis.336 The Committee found this wording to be confusing and unclear. It recommended that the regulation should instead state that payments were limited to one telephone contact session as this was what was intended.

The clarity of regulations is especially important when they impose obligations, as people must clearly know what is required of them in order to discharge those obligations. The Biosecurity (Ruminant Protection) Regulations 1999 placed significant obligations on every “operator” as defined in the regulations.337 However, the Committee found that the definition of operator was such that it was unclear exactly who was considered to be an operator and therefore covered by the regulations. This ambiguity was made even worse by the fact that failure to comply with the regulations was to commit an offence of absolute liability. The Committee made a strong recommendation that the definition of operator be amended to provide greater clarity.338

The Committee also found fault with six codes of animal welfare made under the Animal Welfare Act 1999.339 Codes of welfare were used to promote appropriate behaviour, establish minimum standards and promote best practice in relation to animals owned or in the charge of any person. Under the Act it was not an offence to breach a code, but it was a defence to a prosecution if a defendant could show that he or she equalled or exceeded a minimum standard in a code of welfare. The difficulty was that the codes had previously been voluntary codes and as such sought to provide information rather than set minimum standards of conduct. Thus a person who wished to avail himself or herself of a defence to a prosecution under the Act may have had difficulty proving that he or she satisfied the minimum standards in the codes because these standards were either unclear or unstated. Accordingly, the Committee found the codes to have breached this Standing Order ground.

Clarity of language is also important when the regulations in question seek to control an activity. Again, people must be able to ascertain from the regulations exactly what they can and cannot do. This is particularly relevant when granting a licence or a permit. For example, the Marine Mammals Protection Regulations 1990 established a permit system for commercial operators who wished to transport people to view marine mammals.340 However, the regulations failed to specify detailed criteria upon which the Director-General of the Department of Conservation would exercise the discretion to grant a permit. The Committee recommended that such criteria be inserted into the regulations given the financial interests at stake for applicants. Similarly, the Committee expressed concern with the Hurunui/Kaikōura Earthquakes Recovery (Coastal Route and Other Matters) Order 2016. The Order facilitates restoration work on coastal routes. Clause 29 specifically set outs the actions an agency may carry out in a reserve despite anything to the contrary in the management plan, Reserves Act, or the enactment which the reserve is held under. The clause specifics the actions as being able to:

(a) undertake restoration work anywhere in a reserve;

(b) operate a parking area for heavy motor vehicle anywhere is a reserve; and

(c) prohibit persons from entering or remaining on a reserve.

The Committee sought the powers of (b) and (c) to be made clear to apply only to restoration work.341

335 Regulations Review Committee “Complaint Relating to Land Transport Rule 2012 - Vehicle Standards (Glazing)”, above n 193, at 15.

336 Regulations  Review Committee “Complaint Relating to the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992”, above n 324.

337 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208.

338 The Committee also made a finding that some of the obligations had been drafted in an ambiguous and vague manner and recommended their removal altogether.

339 Regulations Review Committee “Investigation into Six Codes Deemed to be Codes of Welfare Under the Animals Act 1999” [2000] AJHR I16B.

340 Regulations Review Committee “Inquiry into the Marine Mammals Protection Regulations 1990”, above n 273.

341 Regulations Review Committee “Activities of the Regulations Review Committee in 2017” [2017] AJHR I.16D at 11 – 12.