Chapter 2: Regulations Review Committee
The Regulations Review committee is the central vehicle for scrutiny of regulations, disallowable instruments and other delegated legislation. This chapter briefly explains the history the committee, along with its current composition, role and functions. In the chapter that follows, the instruments subject to the Committee’s jurisdiction – regulations, disallowable instruments and other delegated instruments – are defined and explained.
II Genesis and History
The Committee was first established in 1985 and has operated continually since then.1 It was established as part of a wider process of constitutional reform aimed at reining in the power of the executive in New Zealand.2 The main concern was that delegated legislation was being used by the executive to push through government policy initiatives.3 This was appealing to the executive because of the relative ease of passing laws in this way and the general avoidance of parliamentary scrutiny,4 which included debate in the House, three readings, and, in most cases, referral to the relevant subject select committee.5 However, this practice undermined the constitutional principle that “democratically elected and accountable members of Parliament [should] retain control over the content of the law.”6 Delegated legislation, on the other hand, is meant only to provide the detail necessary for the implementation of the law.
Hence, the Regulations Review Committee was established as a specialist standing Committee of the House in order to provide a consistent level of parliamentary scrutiny over the use of delegated legislation.7 Standing Orders continue to mandate that a Regulations Review Committee be established at the commencement of each Parliament.8
In the most recent term of Parliament, the Committee consisted of 6 members, is chaired by an Opposition MP and equal representation of government and opposition MPs. There are no Standing Orders addressing the composition of the Committee.9 Thus, the size of the Committee has varied over time (from as many as 9 to 5 committee members). By convention, the Committee is chaired by a non-government member of Parliament. During most of its existence, the convention was understood to be that the majority of the Committee’s members do not belong to the party currently in government; however, this convention has not been followed since the 50th Parliament.
The Committee generally works on a less partisan basis than many other parliamentary committees. It tries to avoid situations where government members refuse to find fault with government regulations or non-government members continually oppose them purely on the basis of party allegiance. This approach is consistent with the principle that the Committee does not concern itself with matters of policy but instead limits itself to technical scrutiny of regulations. This is not to say, however, that party politics are completely absent from committee decision making. And, on occasion, the Committee will make a majority finding while in the same report noting the differing views of the minority.10
The Regulations Review Committee lies is at the heart of parliamentary scrutiny of regulations and other subordinate legislation.11 Doug Kidd, twice chairman of the Regulations Review Committee and former Speaker of the House, said:12
Much of the Committee’s work is reactive; it examines all regulations after they are made and ensures that they do not offend against the principles laid down in Standing Order 327(2). However, the Committee is also proactive insofar as it examines draft regulations and regulation-making powers in bills to discourage the making of regulations, which, once promulgated, are likely to breach good law-making practices. The Committee also issues occasional reports in an effort to educate and to clarify matters relating to the delegation of law-making powers.
The Committee also provides a useful mechanism for those adversely affected by regulations. The courts are limited to a finding of ultra vires when dealing with regulations; in contrast, the Committee can examine a regulation according to wider suite of grounds. Although the Committee has a power of recommendation only, its ability to effect changes to regulations is significant. And the Committee’s scrutiny may also trigger the automatic disallowance provisions in the Legislation Act 2012.
Importantly, the Committee does not purport to examine (or offer opinions on) matters of policy. This is because policy matters are “seen to belong to primary legislation which is more appropriately dealt with in the House or by other subject committees”.13 Instead, the Committee provides technical scrutiny of regulations. For example, the Kiwifruit Marketing Regulations 1977, Amendment No 4 established the Kiwifruit Marketing Board.14 The regulations also gave the Board monopoly export rights, meaning it could compulsory acquire export kiwifruit from growers. In examining the regulations, the Committee passed over the policy decision to establish the Board in the first place:15
What did concern the Committee was the way in which regulations had been used to implement an important government policy. The Committee was of the opinion that the establishment of the Board was more appropriate for parliamentary enactment, especially given that it would have powers of compulsory acquisition (estimated to be worth $600 million per year). Thus, there is a distinction between the policy within regulations on the one hand, and the proper use of regulations to implement policy decisions on the other hand. The Committee concerns itself only with the latter.
The Committee’s functions are mandated by key Standing Orders and include:16
- examining regulations (SO 326(1));
- examining draft regulations (SO 326(2));
- examining regulation-making powers in bills (SO 326(3));
- considering any matter relating to regulations (SO 326(4)); and
- hearing complaints regarding regulations (SOs 326(5) and 328).
A Examination of Regulations
The Committee automatically examines all regulations and other disallowable instruments after they are presented to the House and scrutinises them in accordance with the 9 grounds contained in Standing Order 327(2).17 For instance, from 1 January to 22 August 2017 it scrutinized 267 regulations.18 The Committee’s examination of regulations against these grounds are discussed in detail in chapters 5 to 13.
As a matter of practice, the Committee’s legal advisors generally examine all new regulations and bring only those of particular concern to the Committee’s attention.19 Most regulations raise no more than cursory issues. Those that raise more significant issues, however, will often lead to the Committee directly requesting information from the relevant Minister, for example information regarding the likely effect of the regulations. If the information provided is not sufficient, the Committee may then engage in an investigation into the regulation in question.20
As a result of such an investigation into a regulation, the Committee may report to the House and recommend that the regulation in question be amended or revoked. The government may follow the Committee’s recommendations, but is under no obligation to do so. Regardless of whether it implements the recommendations, the government must table a response to that report in the House within 60 working days.21 On several occasions, the Committee has submitted a further report to the House on the basis that the government misunderstood or failed to adequately address its concerns.22 On several occasions the Committee has expressed concern with the current examination process. In particular, the Committee has also acknowledged that difficulty in identifying and accessing secondary legislation that is not drafted by the Parliamentary Counsel Office has delayed their examination.23
B Examination of Draft Regulations
The Committee may also examine draft regulations, when they are referred to it by a minister. This jurisdiction is rarely used, even though the Committee has stated that the optimal time to scrutinise regulations is before the regulations have come into force.24
The Committee is not systemically apprised of regulations in draft form. However, occasionally it may become aware proposed regulations, for example, through complaints made to the Committee.25 In such cases, the Committee may invite the relevant minister to forward draft regulations for consideration. Alternatively, a minister may forward draft regulations on his or her own initiative. The Committee will not usually proceed with its examination if it considers that the minister’s time-frame is too short to allow meaningful scrutiny. Instead it will scrutinise the regulations after they are made.
Occasionally referral of draft regulations to the committee is a statutory requirement, especially in some recent emergency legislation.26
C Examination of Regulation-Making Powers in Bills
The Committee may examine regulation-making powers contained in a bill before another select committee.27 Scrutinizing the regulation-making powers in bills is central to the Committees’ work. For example, in 2016 the Committee made 26 reports to other committees about regulation-making powers in bills.28 A regulation-making power in a bill may be drafted in such a way that the resulting regulations are likely to breach one or more of the grounds listed in Standing Order 327(2). The Committee also examines whether the regulation-making powers are consistent with good legislative design, including the established principles set out in the Legislation Design and Advisory Committee’s Legislation Guidelines.29 It is of considerable benefit, therefore, if the Committee is able to effect a change to such a regulation-making power before it is enacted into law.30
Whether or not the Committee examines a regulation-making power in a bill and reports to the relevant subject committee is a matter for its own discretion but generally looks at all bills with regulation-making powers.31 Alternatively, some committees proactively write to the Committee for advice.32 Where the Committee does consider a regulation-making power in a bill, if it has concerns it will provide the relevant select committee with a report outlining its concerns.33 The select committee considering the bill is under no obligation to adopt these recommendations. In practice, however, select committees will often recommend to the House that a regulation-making power be amended in accordance with the advice of the Regulations Review Committee.
The Committee’s examination of regulation-making powers in bills is discussed in more detail in the Chapter 4.
D Considering Matters Relating to Regulations
The Committee has the general power to report to the House on matters related to regulations.34 This power is used when the Committee makes an occasional report to the House, often dealing with principles or general issues relating to delegated legislation.35 Such reports have included the principles relating to the incorporation of material by reference, the use of instruments of exemption, and the use of the affirmative resolution procedure. Inadequate government response to these reports may lead to further reports on the same issue.36 This function is discussed in more detail in Chapter 14.
E Hearing Complaints regarding Regulations
Any person aggrieved at the operation of a regulation may complain to the Committee.37 The practice of the Committee is to initially consider whether to investigate the complaint or to resolve no further with the complaint. The complainant is given an opportunity to address the Committee regarding the regulation if an investigation is undertaken (and occasionally when the Committee is considering whether to investigate). The Committee will investigate the regulations based on the nine grounds listed in Standing Order 327(2) and is not limited in its consideration by the substance of the complaint.38 While the Committee’s jurisdiction to investigate complaints is broad, the only available remedy is for the Committee to make recommendations in a report to the House or the Government (or to trigger House disallowance processes).39
In its complaints jurisdiction, the Committee is limited to scrutinising “regulations”. This is a broad scope, but the Committee has at times noted the limits of its jurisdiction. For example, in rejecting a potential complaint regarding the approval of Variation A1073 to Food Standard 1.5.2 in 2013, the Committee noted that the standard in question, despite being a part of New Zealand law, was an instrument made by Food Standards Australia New Zealand under Australian Commonwealth legislation. This instrument was not made under an “Act of the Parliament of New Zealand”, within the meaning of section 29 of the Interpretation Act 1999 (the then relevant definition), and was thus not an instrument able to be scrutinised by the Committee.40
VII Grounds and Jurisprudence
As noted earlier, the Committee examines regulations based on the nine grounds listed in Standing Order 327(2), namely:
- discord with the general objects and intentions of the Act;
- undue trespass on personal rights and liberties;
- unusual or unexpected use of the powers conferred by the Act;
- unduly makes the rights and liberties of persons dependent upon administrative decisions not subject to judicial review on their merits;
- excludes the jurisdiction of the courts without authority;
- more suited to parliamentary enactment;
- retrospective without authority;
- non-compliance with notification and consultation procedures; or
- form or purport calls for elucidation.
Chapters 5 through 13 summarise the principles that have developed under each of these grounds. Before considering the Committee’s treatment of each ground, several preliminary points should be made.
First, a regulation may breach more than one ground. For example, a regulation may trespass unduly on rights and liberties but it may also have been made contrary to consultation requirements prescribed by statute. Secondly, the Committee does not explicitly operate on a historical stare decisis basis. In other words, the current Regulations Review Committee is not in any way bound by the findings or statements of previous Regulations Review Committees. Nevertheless, successive Committees have shown a high degree of consistency in their interpretation and application of each ground. One Committee will often cite the work of an earlier Committee in order to help explain its position on a particular aspect of a regulation. Finally, the following discussion of each Standing Order ground is not intended to be a complete notation of every instance where the Committee has discussed a particular ground. Rather, it provides a general overview of the work of the Committee. Those Committee reports that are cited have been used because they help illustrate the way in which the Committee has applied and interpreted the different elements of each of the nine grounds.
VIII Other Mechanisms for Scrutiny of Regulations
This Digest addresses the Regulations Review Committee’s functions and jurisprudence. The Committee is not, however, the only mechanism providing for the scrutiny of regulations.41
Regulation-making is also supervised by the executive and judicial branches of government including:
- executive scrutiny and vetting;
- judicial scrutiny;
- other parliamentary scrutiny.
A Executive Scrutiny and Vetting
In terms of executive scrutiny, the Cabinet Manual puts in place rules dealing with the making and publication of new regulations.42 The Manual notes that regulations should only deal with matters of a technical or detailed nature and warns that regulations must not be ultra vires the empowering statute. It also sets out a nine-step guideline process for the promulgation of regulations made by Order in Council (but not other secondary legislation). Most notably:
- the need for the regulations must generally be identified and approved by Cabinet;
- appropriate consultation must be undertaken;
- draft regulations are to be prepared by Parliamentary Counsel Office (PCO) and generally submitted to cabinet; and
- regulations are to be approved by Cabinet and the Executive Council.
The Cabinet Manual places an obligation on PCO to notify the Attorney-General and the relevant minister of draft regulations that are “not within the regulation-making powers granted in the Act, restrict individual freedom unreasonably, or are otherwise undesirable from a legal perspective”.43 No specific obligations are placed on the Attorney-General or the minister in return. The CabGuide sets out the processes approved by Cabinet for Cabinet and its various Committees.44 The CabGuide states that PCO must certify draft regulations as fit for submission to Cabinet. This includes advice as to whether or not the regulations are authorised by the empowering provision.45 The CabGuide also states that the minister responsible for a set of regulations must be present at the Executive Council (when regulations are formally promulgated) to answer any queries from the Governor-General. Alternatively, he or she or must have briefed another minister who will be present.46
The principles and requirements set out in the Cabinet Manual and CabGuide can be seen as an attempt to streamline the regulation-making process and to encourage the constitutionally proper use of regulation-making powers.
B Judicial Scrutiny
After regulations are made, the courts have the jurisdiction to strike them down on the basis that they are ultra vires the empowering legislation.47 When a regulation-making power is exercised, the individual or body to whom the power is delegated must legislate within those set limits. If it does not, then it is purporting to legislate on an authority that does not exist and the regulation is liable to being ruled unlawful. Palmer found that between 1986 and 1999 only fifteen cases in New Zealand addressed whether particular regulations were ultra vires. An online search of New Zealand cases from 2000 to 2013 reveals a similar trend, with 16 cases addressing whether particular regulations were ultra vires.48 Despite these relatively low figures, the fact that the courts are able to invalidate a regulation acts as an important check on those exercising delegated regulation-making powers.49
C Other Parliamentary Scrutiny
Parliament itself has a significant role in supervising the making of regulations and other subordinate legislation. As the Algie Committee said:50
In practice, supervision of regulations by Parliament, other than through the examination by the Regulations Review Committee, takes 4 key forms:
- the presentation of all regulations to the House of Representatives;
- confirmation of regulations by an Act of Parliament;
- approval of regulations by resolution of the House;
- disallowance or amendment of regulations or other disallowable instruments by the House under the Legislation Act 2012.
Usually, the Regulations Review Committee usually plays a preliminary role in the disallowance of secondary legislation.
Presentation of regulations
Section 41 of the Legislation Act 2012 (before 2013, section 4 of the Regulations (Disallowance) Act 1989) requires most disallowable instruments to be laid before the House no later than 16 sitting days after they are made. This also applies to the class of instruments once known as deemed regulations discussed in Chapter 3, but does not apply to instruments which are disallowable by virtue only of their “substantial legislative effect”. A mandatory presentation requirement ensures that the House is aware that regulations have been made, allows for parliamentary scrutiny of them, and ensures that ministers are accountable for regulations and disallowable instruments made by them or others within their portfolio responsibilities.51 In recent years, the Committee has expressed concern that some disallowable instruments that are not legislative instruments are not being presented.52 In 2016, the Committee found that 21 regulations it reviewed were not presented to the House.53
Confirmation of regulations by statute
Occasionally, an Act may provide that regulations made pursuant to it must be confirmed by statute, often to prevent the regulations concerned from lapsing. If confirmation is not provided within the specified period, the regulations are automatically revoked. This mechanism provides Parliament with the opportunity to consider the policy issues raised by the regulations and to give, or withhold, its approval.54 Confirmation is typically achieved through the enactment of an annual Subordinate Legislation Confirmation and Validation Bill. Standing Order 333 sets out a streamlined House process for confirmation bills: there is no debate in the first reading and these bills are referred to the Regulations Review Committee. The Committee considers these bills with regard to written submissions from government departments responsible for administering the subordinate legislation in the Bill and advice from PCO. After the second reading, these proceed straight to the third reading, unless the House resolves into committee to consider an amendment. Where confirmable instruments are not confirmed, they are automatically revoked before the deadline. The Regulations Review Committee has, however, questioned whether more effective parliamentary scrutiny of regulations and more efficient use of House time might be achieved by changing the process under which these confirmation and validation bills are passed.55 Of particular concern to the Committee in its report on the Subordinate Legislation (Confirmation and Validation) Bill 2012 was the limited time given to the Committee to scrutinise Bills of this type and to refer specific policy issues to the relevant subject select committee.56 The Committee suggested that the House extend the process contained in the Legislation Bill (now contained in Part 2, Subpart 3 of the Legislation Act 2012) for enacting “revisions Bills,” to also apply to confirmation and validation bills.57 The Committee said that this process would both “streamline” such bills’ progress through the House as well as ensure the Committee is given sufficient time to scrutinise and receive advice from Government departments and other Select Committees on bills of this type. This suggestion was taken up by the House following the 2014 review of the Standing Orders, and Standing Order 325 was introduced as a result. The new procedure largely adopts the Committee’s recommendations, but excludes the validation of illegal regulations from the streamlined procedure.58
In its report on the Subordinate Legislation Confirmation Bill (No 2) 2016, the Committee again expressed concern with the limited time given to scrutinise confirmation bills. It recommended that confirmation bills be introduced and referred for scrutiny earlier. Some Committee members sought an amendment to Standing Order 326(2) to allow draft regulations to be scrutinized prior to instruments being finalised. However, this view is not unanimously held. Other Committee members regarded the process as well established and effective. They expressed concern that requiring the Committee to consider instruments prior to finalising could cause unnecessary and duplicated work.59
Approval of regulations by resolution
Approval of regulations by a resolution of the House provides a further method of scrutiny. Rather than passing an Act to confirm regulations, approval is provided by a resolution of the House. This ‘affirmative resolution’ procedure was first used in the Misuse of Drugs Act 1975. Under section 4A of the Act, a regulation that amends the schedules to the Act (for example designating a new substance as a class A, B, or C drug) must be approved by a resolution of the House. If the resolution is passed, a commencement order can then be made which brings the regulation into effect.
The Regulations Review Committee has previously expressed concern at the growing use of affirmative resolution procedures (see discussion below).60
Disallowance and amendment
Parliament is able to exercise significant post-promulgation powers to disallow and amend regulations under the Legislation Act 2012.61 In particular:
- The House may, by resolution, disallow any regulations or provisions of regulations (s 42 of the Legislation Act 2012; formerly s 5 of the Regulations (Disallowance) Act 1989).
- Any member of the Regulations Review Committee may give a notice of motion to disallow any regulation and, unless Parliament disposes of the motion within 21 sitting days of it being given, the regulation is deemed to have been disallowed (s 43 of the Legislation Act 2012; formerly s 6 of the Regulations (Disallowance) Act 1989).
- The House may, by resolution, amend any regulations or revoke any regulations and substitute other regulations (s 46 of the Legislation Act 2012; formerly s 9(1) of the Regulations (Disallowance) Act 1989).
First, any Member of Parliament is able to put forward a notice of motion to amend or disallow regulations under s 42 of the Legislation Act 2012. This type of notice of motion faces considerable hurdles within the parliamentary process. Most notably, it is a negative resolution procedure, which means if the motion to disallow is not disposed of within the allocated time, it will typically have no effect and the regulations concerned will stand.62
Secondly, the automatic 21-day disallowance mechanism under section 43 of the Legislation Act 2012 puts an obligation on the government of the day to allow the House to debate and vote on a motion put forward by a member of the Regulations Review Committee. If the government does not facilitate this debate, the regulations will be disallowed automatically. Until recently, the 21-day disallowance procedure had been, on its face, relatively ineffectual. Before 2013, the disallowance procedure had been invoked on six occasions in the House, none of which resulted in a regulation being disallowed.63 It has been argued in previous editions of this publication that the value of the automatic disallowance procedure lay primarily in the mere existence of the power. In the same way that a court’s ability to declare a regulation ultra vires acts as a deterrent to the making of unlawful regulations, the “existence of a power of disallowance provides the sanction that ensures that a Committee’s views are taken seriously”.64 In short, the mere prospect of a disallowance motion being moved may encourage the executive to amend regulations to address the Committee’s concerns.
The 21-day disallowance mechanism was fully applied for the first time in 2013, resulting in the disallowance of three regulations in the Road User Charges (Transitional Matters) Regulations 2012. In its report on those regulations,65 the Committee recommended the disallowance of the three individual regulations on the grounds that they breached Standing Orders 327(2)(c) and (f).66 Following the report, on 13 November 2012, then Chairperson of the Committee, Charles Chauvel MP, gave a notice of motion in the House to disallow these regulations. This notice of motion was not withdrawn, voted or debated on (or otherwise disposed of) within 21 sitting days, and therefore under s 6(1) of the Regulations (Disallowance) Act 1989 (which was in force at the time) the regulations were automatically disallowed at the end of 27 February 2013. This disallowance was published in the Statutory Regulations series, as a regulation with force of law in itself, on 28 February 2013.67 One of the three disallowed regulations was then reinstated in the Road User Charges (Transitional Exceptions for Certain Farmers’ Vehicles) Regulations 2013.68 At the time, it was not explained why the House had not debated or otherwise disposed of the motion. A subsequent Committee report indicated that advice had been given to the relevant minister regarding the motion, but no House time had been devoted to debating the motion.69 The minister told the Committee that had the motion been debated, it would have been defeated, and the government would have been forced to use House time to effectively reconfirm the regulations.70 The minister believed that given the infrequent use of the 21-day disallowance procedure, the government voting down such a motion would not have set a good precedent for future use of the procedure.71 Instead, the government did not interfere with the motion, implicitly allowing the disallowance of the three regulations concerned while explicitly reinstating one of the disallowed regulations. Mr Chauvel, in his valedictory speech to the House on 27 February 2013, took the view that the disallowance occurring was an example of the proper use of the section 6 procedure and that the minister concerned had allowed the procedure to work in the way it was intended.72 The Committee, however, expressed regret that the regulations concerned were immediately reinstated.73 It encouraged the relevant minister to, in future, engage in dialogue with the member who lodged the motion regarding the issues underlying the motion and the viability of the regulations concerned.
The significance of this use of the disallowance procedure, therefore, remains to be seen. The successful disallowance of the regulations referred to above may lead to disallowance motions being submitted to the House more regularly, particularly in order to press the executive to address the Committee’s concerns. The automatic disallowance procedure may, on the other hand, remain an infrequently used parliamentary check on the executive’s regulatory powers, particularly since the government retains the power to expressly reinstate any disallowed regulations.
Thirdly, the power to amend or revoke regulations under s 46 of the Legislation Act 2012 serves as a reminder to those that exercise regulation-making powers that Parliament ultimately retains control over delegated legislation. The Regulations Review Committee has observed that “this clause confirms the position of those who delegate in that a delegated power does not prevent the exercise of the same power by the person who delegates”.74 Such a motion was moved in the House of Representatives for the first time on 26 September 2008.75 The motion, which the House agreed to, revoked clause 4 of the Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand.
2 See generally Geoffrey Palmer and Matthew Palmer Bridled Power (4th ed, Oxford University Press, Auckland, 2004).
3 Caroline Morris and Ryan Malone “Regulations Review in the New Zealand Parliament” (2004) Macquarie Law Journal 7 at 8.
4 Morris and Malone, above n 3, at 10.
5 Morris and Malone, above n 3, at 10.
6 Geoffrey Palmer “Deficiencies in New Zealand Delegated Legislation” (1999) 30 VUWLR 1 at 2.
7 Standing Orders of the House of Representatives 2020, SO 185(1)(b).
8 Standing Orders of the House of Representatives 2020, SO 185(1)(b).
9 Ross Carter, Jason McHerron and Ryan Malone Subordinate Legislation in New Zealand (LexisNexis, 2013) at 161.
10 See for instance Regulations Review Committee “Investigation into the Disputes Tribunals Amendment Rules 1997 and the Disputes Tribunals Amendment Rules 1998”  AJHR I16L and Regulations Review Committee “Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004” (12 August 2013).
11 For other mechanisms for scrutiny, see Part VIII below.
12 Kidd, above n 88, at 1-2.
13 Jonathan Hunt “The Regulations Review Committee”  NZLJ 402-408 at 402.
14 Regulations Review Committee “Report on the Inquiry into the Appropriateness of Establishing the Kiwifruit Marketing Board Through Regulations”  AJHR I16.
15 Regulations Review Committee “Report on the Inquiry into the Appropriateness of Establishing the Kiwifruit Marketing Board Through Regulations”  AJHR I16 at 5.
16 Standing Orders of the House of Representatives 2020.
17 Standing Orders of the House of Representatives 2020, SO 326(1) and see grounds explained below.
18 Regulations Review Committee “Activities of the Regulations Review Committee in 2017”  AJHR I16D at 10.
19 Carter, McHerron and Malone, above n 9, at 163.
20 Carter, McHerron and Malone, above n 9, 164.
21 Standing Orders of the House of Representatives 2020, SO 256.
22 See for example, Regulations Review Committee “Report on the Government’s Response to the Committee’s Inquiry into the Geothermal Energy Regulations 1961”  AJHR I16; Regulations Review Committee “Report on the Government’s Response to the Committee’s Inquiry into the Reserve Bank of New Zealand Order 1988”  AJHR I16; Regulations Review Committee “Report on the Government’s Response to the Inquiry into the Resource Management (Transitional) Regulations 1994 and the Principles that Should Apply to the Use of Empowering Provisions Allowing Regulations to Override Primary Legislation During a Transitional Period”  AJHR I16; and Regulations Review Committee “Report on the Government’s Response to the Report on the Complaint Relating to Staffing Orders, Promulgated under Section 91H of the Education Act 1989, Affecting Area, Primary, Intermediate, and Secondary Schools”  AJHR I16L.
23 Regulations Review Committee “Activities of the Regulations Review Committee in 2017”  AJHR I16D at 1.
24 Regulations Review Committee “Activities of the Regulations Review Committee During 1999”  AJHR I16X.
25 Regulations Review Committee “Activities of the Committee in 1988 and 1989”  I16A at 4.
26 See eg Hurunui/Kaikōura Earthquakes Recovery Act 2016, s 8(1)(c); and Christ Church Cathedral Reinstatement Act 2017, s 9(1)(b).
27 Standing Orders of the House of Representatives 2020, SO 326(3).
28 Regulations Review Committee “Activities of the Regulations Review Committee in 2016”  at I.16C at 4.
29 Regulations Review Committee “Activities of the Regulations Review Committee in 2016”  AJHR I.16C at 4 and Regulations Review Committee “Activities of the Regulations Review Committee in 2017”  AJHR I16D at 4. See the Legislation Design and Advisory Committee Legislation Guidelines at <www.ldac.org.nz>.
30 Doug Kidd has stated that “the task of considering regulation-making powers in bills is the [Committee’s] most important function in that it is a top of the cliff function and of enduring value”: Kidd, above n 88, at 4.
31 When the Committee was first established, it could report on a regulation-making power only at the request of the select committee considering the bill. See Regulations Review Committee “Regulation Making Powers in Legislation”  AJHR I16A.
32 Regulations Review Committee “Activities of the Regulations Review Committee in 2016”  AJHR I.16C at 4.
33 Much of the Committee’s work in this area can be found in its annual activities reports. See also Richard Worth and Debbie Angus “A New Zealand Perspective of the Scrutiny of Delegated Legislation” in Regulations Review Committee “First International Conference on Regulation Reform Management and Scrutiny of Legislation”  AJHR I16F at 13-27.
34 Standing Orders of the House of Representatives 2020, SO 326(4).
35 For a complete list of occasional reports tabled in Parliament see Appendix B.
36 Carter, McHerron and Malone, above n 9, at 167.
37 Standing Orders of the House of Representatives 2020, SO 328(1).
38 Regulations Review Committee “Complaint regarding the Legal Services Regulations 2011” (19 September 2013) at 6.
39 Regulations Review Committee “Activities of the Regulations Review Committee in 2017”  AJHR I.16D at 15.
40 Regulations Review Committee Activities of the Regulations Review Committee in 2013 (27 June 2014) at 34
41 For a history of the different mechanisms and general scrutiny of regulations, see earlier editions of this Digest and Carter, McHerron and Malone, above n 9.
42 Cabinet Office, Cabinet Manual 2008, at [7.84-7.86].
43 Cabinet Office, Cabinet Manual 2017 at [7.82].
44 Cabinet Office CabGuide <www.cabinetoffice.govt.nz>.
45 Regulations Review Committee “Inquiry into the Resource Management (Transitional) Regulations 1994 and the Principles that Should Apply to the Use of Empowering Provisions Allowing Regulations to Override Primary Legislation During a Transitional Period”, above n 84, at 20.
46 Cabinet Office CabGuide <www.cabinetoffice.govt.nz>.
47 See generally Phillip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at 1007-1055 and Carter, McHerron and Malone, above n 9.
48 This figure was obtained from a search of the LexisNexisNZ online database, and should be regarded as indicative only (search conducted 24 May 2013).
49 Palmer, above n 6, at 12.
50 Algie Committee, above n 80, at 6.
51 See Algie Committee, above n 80, at 9.
52 Regulations Review Committee “Activities of the Regulations Review Committee in 2016”  at I.16C at 14 and Regulations Review Committee “Activities of the Regulations Review Committee in 2017”  AJHR I.16D at 13.
53 Regulations Review Committee “Activities of the Regulations Review Committee in 2016”  AJHR I.16C at 14.
54 This is specifically contemplated by section 37 of the Legislation Act 2012, which defines “confirmation provisions” as follows: “confirmation provision, in relation to an instrument made under an enactment, means an enactment that provides that the instrument lapses, expires, or is revoked at a stated time unless the instrument is confirmed, confirmed and validated, or validated by an Act passed or enacted before that time”. See also Regulations Review Committee “Regulation Making Powers in Legislation”  AJHR I16A.
55 Subordinate Legislation (Confirmation and Validation) Bill 2011 (No 3) (311–1) (select committee report); Subordinate Legislation (Confirmation and Validation) Bill 2013 (No 2) (142–1) (select committee report).
56 Subordinate Legislation (Confirmation and Validation) Bill 2012 (51–1) (select committee report).
57 Subordinate Legislation (Confirmation and Validation) Bill 2012 (51–1) (select committee report) at 5.
58 Standing Orders Committee “Review of Standing Orders 2014” (21 July 2014), at 23. In brief, the procedure is as follows: (a) set the bill down for its first reading without debate; (b) when the bill is read a first time, it automatically stands referred to the Regulations Review Committee; (c) debate the bill’s second reading in the usual way; (d) set the bill down for consideration in a committee of the whole House only if the Minister in charge requires an amendment to be considered, or if a member lodges an amendment with at least 24 hours’ notice before the time that the House meets on the day on which the bill is read a second time; (e) the bill is taken for its third reading without debate.
59 Subordinate Legislation Confirmation Bill (No 2) (select committee report) at 3–4.
60 See Chapter 14(IV).
61 These powers were original set out in the Regulations (Disallowance) Act 1989. The Legislation Act 2012 only made minor changes to the wording of these powers and thus the effect of the provisions is the same. Appendix E of this publication provides a table of relevant changes in section numbering between the 1989 and 2012 Acts.
62 Standing Orders of the House of Representatives 2020, SO 331.
63 The six occasions referred to are: (1) Civil Aviation Charges Regulations 1990 (notice of motion given on 4 September 1990); (2) Disputes Tribunal Amendment Rules 1998 (notice of motion given on 9 September 1998); (3) New Zealand Food Standard 1996, Amendment No 11 (notice of motion given on 13 July 1999); (4) Court of Appeal/High Court/District Court Fees Regulations 2001 (notices of motion given on 8 and 13 November 2001); (5) New Zealand (Mandatory Fortification of Bread with Folic Acid) Amendment Food Standard 2009 (notice of motion given on 5 August 2010); (6) Plumbers, Gasfitters and Drainlayers Board (Plumbing Registration and Licensing) Notice 2010, Plumbers, Gasfitters and Drainlayers Board (Gasfitting Registration and Licensing) Notice 2010, Plumbers, Gasfitters and Drainlayers Board (Drainlayers Registration and Licensing) Notice 2010, and Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010 (notices of motion given on 15 February 2011 and 15 March 2011). Of these six motions, four were debated and voted on, with the other two lapsing on the dissolution of Parliament.
64 Regulations Review Committee “Proposals for a Regulations Bill”  AJHR I16B, 36.
65 Regulations Review Committee “Investigation into the Road User Charges (Transitional Matters) Regulations 2012” (13 November 2012) at 12.
66 Discussed in Chapters 7 and 10 respectively.
67 Notice in relation to Notice of Motion to Disallow Regulations 5(3), 5(4) and 8 of the Road User Charges (Transitional Matters) Regulations 2012.
68 Regulation 8 of the disallowed regulations was reinstated in the Road User Charges (Transitional Exemption for Certain Farmers’ Vehicles) Regulations 2013. The Order-in- Council promulgating these regulations was made on 25 February 2013, before the regulations concerned were disallowed.
69 Regulations Review Committee “Investigation into the Road User Charges (Transitional Exemption for Certain Farmers’ Vehicles) Regulations 2013” (12 August 2013) at 9-11.
70 Regulations Review Committee “Investigation into the Road User Charges (Transitional Exemption for Certain Farmers’ Vehicles) Regulations 2013” (12 August 2013) at 9-11.
71 Regulations Review Committee “Investigation into the Road User Charges (Transitional Exemption for Certain Farmers’ Vehicles) Regulations 2013” (12 August 2013) at 9-11.
72 (27 February 2013) 687 NZPD 8284.
73 Regulations Review Committee “Investigation into the Road User Charges (Transitional Exemption for Certain Farmers’ Vehicles) Regulations 2013” (12 August 2013) at 10-11.
74 Regulations Review Committee “Report on the Statutory Publications Bill”  AJHR I16 at 33.
75 “Notice of Scopes Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand Amendment Notice” Hon Dr Michael Cullen (23 September 2008) 650 NZPD 19223.