Chauvel Charles: Regulatory Standards Bill — First Reading 
Chauvel Charles: Regulatory Standards Bill — First Reading 
[Volume:673;Page:19756] 
CHARLES CHAUVEL (Labour) 
: 
 I agree with some of what the last speaker Peseta Sam Lotu-Iiga said about the principles of the Regulatory Standards Bill. They are at least on their face principles that pretty much anybody should support. Obviously legislation should be consistent with the rule of law. The law should be clear and accessible. It should not adversely affect rights and liberties or impose obligations retrospectively. Every person should be equal before the law and issues of legal right and liability should be resolved by the application of law rather than by the exercise of a discretion on the part of officials elected or otherwise. Those principles are incontrovertible and as my colleague Lianne Dalziel said are the basis on which the legal system rests. They are the basis on which all the presumptions around our legislation are construed when the courts exercise their ultimate right to decide what we meant when we made a law. 
Similarly in respect of liberties laws should not diminish a person’s liberty personal security freedom of choice or action or rights to own use and dispose of property except as is necessary to provide for or to protect any such liberty freedom or right of the person themselves or of another person. But in this legislation we again have a fundamental principle or canon of interpretation that the courts will use now when they construe legislation passed by this House. They will read laws down if they appear to offend against those principles. Only if this Parliament were to use the clearest possible words could the courts come to a contrary conclusion. 
Likewise there is a principle contained in the bill around the taking of property: laws should not take or impair or authorise the taking or impairment of property without the consent of the owner unless there is an overriding public interest involved full compensation for the taking is provided and it is provided on behalf of or by the persons who obtain the benefit of the taking. Again no one who has studied our constitution would find that surprising. 
Likewise taxes and charges should not be levied under any administrative provision; they should be authorised only by a principal enactment. The charge should be reasonable in relation to both the benefit the payers are likely to obtain from the goods or services and the cost of efficiency in providing the goods or services. Again that is inarguable. 
In terms of the role of the courts they should always have that authoritative right to determine the meaning of legislation and there should always be a right of appeal on the merits against decisions to a court or other independent body and there should be appropriate criteria laid down for the making of decisions by the court or independent body. 
Finally there are principles enunciated around good lawmaking. Laws should not be made unless to the extent practicable the persons likely to be affected by the legislation have been consulted. Laws should not be made unless there has been a careful evaluation of the issue of the effectiveness of existing legislation and law of whether the public interest requires that the issue be addressed and of any other options including non-legislative options for dealing with the problem. There should be careful evaluation of who is likely to benefit and who is likely to suffer a detriment from the legislation. There should be careful evaluation of the potential adverse consequences of the legislation including the Crown’s potential legal liability that are reasonably foreseeable. The benefits of the legislation should outweigh the costs of it and it should be the most effective efficient and proportionate response to the issue concerned. Again nobody could argue with these principles. They are right and they are self-evident but they exist already in terms of the way hopefully we evaluate legislative proposals. 
One of the problems about the bill and one of the reasons why members on this side have real concerns is that although it seems to state very fair-sounding principles very inarguable principles principles that most would accept without second thought the way in which the principles would then be applied to legislation is the problem. The bill provides that wherever an enactment can be given a meaning that is compatible with the principles it is to be preferred to all other meanings. 
A court can make a declaration of incompatibility between legislation that this House this Parliament may make in future and the principles outlined in this bill if we are to pass it. The problem we then get constitutionally is that if the court does that the declaration of inconsistency has no legal effect. It does not affect the continuing operation of the inconsistent measure and no court may hold any provision of the legislation to be impliedly repealed or revoked. So what is the point? That is really the question here. What is the point in this legislation? Why bother stating principles that already underpin our constitutional arrangements then get a court to say that a future Parliament has breached those provisions but if we do the court’s declaration will not mean anything? What sort of constitutional merry-go-round are we talking about here? What sort of waste of money are we contemplating putting on the statute book by engaging in this exercise? 
I just want to run through some of the criticism that I think has been made justifiably of the bill apart from the problem that I have just identified. First of all the Regulatory Responsibility Taskforce failed to justify why this sort of bill is necessary. There is very little evidence showing why a rigorous or intensive approach is required as opposed to some of the other options that were canvassed by the Commerce Committee when mark 1 of this legislation was considered. There is no convincing argument as to why legislation is required to ensure better legislation as opposed to other means of improving the way that we do things here. When we measure the Regulatory Standards Bill against its own principles it is clear that no responsible legislator could vote for it. 
There is ambiguity in the legislation and again referring to earlier attempts in this area George Tanner QC referred to the open-textured language used which leads to uncertainty of meaning. He said: “It attempts to define good lawmaking by reference to a set of simple principles: in doing so it obscures the complexities inherent in them and creates the same lack of clarity and uncertainty that it seems to prevent.” 
I referred earlier to the difficulty that this legislation will create for the third branch of our government the judiciary. As Sir Geoffrey Palmer has pointed out in a recent article: “Neither the judges nor the legal profession are proficient in policy analysis of the type that leads to regulatory legislative proposals.” In this respect the Regulatory Standards Bill would confer on the judiciary a novel role for which they are not resourced or equipped. I can hear the cries now from parliamentarians and others who do not like the idea of judges expressing a view on policy and content yet here is exactly what is being invited of them by this legislation. We will get all sorts of accusations about the activist judiciary overstepping the mark and overstepping its role yet that is exactly what we would be inviting them to do by the text of this legislation. 
I think ironically this bill will create more compliance costs than it would save. The relevant Minister or the public entity will need to undertake a certification process. There will be regular reviews of all legislation annual reporting requirements by every entity ministerial oversight of the review and then the prospect of litigation being generated by the possibility of an application for a declaration of incompatibility. That all implies massive resources particularly over a 10-year time frame which George Tanner QC referred to as unworkable and unrealistic. 
We have real problems in the legislation. There are better alternatives. The Commerce Committee has already considered those and has said that if a regulatory impact statement and ministerial sign-off on compliance with Legislation Advisory Committee guidelines were taken seriously they would make a real difference here. We should try using what we have improving it and actually adopting the principles that the bill would exhort us to follow. We should look at what we have and decide whether it is workable before we embark on an innovation such as this which will be costly and unworkable. That is my challenge to the Minister.