Chapter 9: Excludes the Jurisdiction of the Courts Without Authority: SO 327(2)(e)

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—


(e)  excludes the jurisdiction of the courts without explicit authorisation in the enabling statute:

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

This Standing Order ground seeks to protect the jurisdiction of the courts to review administrative decisions. The doctrine of the separation of powers, to which New Zealand broadly adheres, allows the judiciary to review the lawfulness of executive action. Generally, if this power is to be limited by regulation, then it must be explicitly authorised by an Act of Parliament.

At the time of writing, just one report of the Committee has addressed this ground in any detail.281 The regulations in question did not expressly limit the jurisdiction of the courts to subject a decision to judicial review. Rather, the issue went to the timing of the regulations and the effect they would have on court proceedings. In 1993, the Kiwifruit Marketing Board (KMB) decided to recoup an overpayment made to growers for the previous year. Court proceedings commenced to determine whether the KMB had this power, and to determine whether it could take existing debt into account when setting future kiwifruit prices.

However, just days prior to the initial hearing into the matter, the Kiwifruit Marketing Regulations 1977, Amendment No 10 were promulgated. These regulations granted the KMB the very powers that were the subject of the court proceedings. Consequently, the planned court proceedings were rendered futile. The decision to make the regulations was justified on the basis that the overpayment issue needed to be resolved, and that the judicial process was proving too slow as a means of achieving this. Ultimately, the Committee concluded that the executive had the authority to make the regulations, but stated that the government should have waited for the litigation to run its course before making the regulations. It also expressed concern at a lack of consultation on the part of the government.

In the 2017 Activities Report, the Committee expressed concern that the Hurunui/Kaikōura Earthquakes Recovery (Coastal Route and Other Matters) Order 2016 may breach SO 327(2)(e). Part 6 (clause 32 to 38) of the Order modifies the process for taking land for public words where the Minister for Land Information considers it reasonably necessary to take land for the purpose of restoration work. Clause 3 excludes the right of the person with an interest in the land intended to be taken, to object in the Environment Court without replacing the right with an alternative or modified process.282

281 Regulations Review Committee “Inquiry into the Kiwifruit Marketing Regulations 1977, Amendment No 10” [1993] AJHR I16I.

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