Chauvel Charles: Legislation Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Legislation Bill — In Committee 
[Sitting date: 06 November 2012. Volume:685;Page:6342. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 Part 3 is an important part of the Legislation Bill. It does two things in substance. First of all it replaces the current definition of “regulations” contained in the Regulations (Disallowance) Act with a new definition “disallowable instruments”. It describes what such instruments are. It goes on to replicate in substance some of the provisions of the disallowance legislation which are necessary for the operation of the Regulations Review Committee and it determines the circumstances in which material may be incorporated by reference into delegated legislation. 
I want to speak about each of those issues because each of them is a matter that has been considered on a number of different occasions by this House but also often on reference from the Regulations Review Committee itself. First of all on the issue of what will now be a disallowable instrument the definition of the new type of instrument for want of a better term is set out in clause 37 of the bill. Clause 38 also provides some elucidation on the term. 
I know that when members look at the clauses they will think that this is an odd way perhaps at first blush of going about the definition because it is going to be possible only to determine whether or not an instrument falls into the category of a disallowable instrument through a relatively complex process of analysis. But this decision has been made deliberately as members who read the report of the Regulations Review Committee will be able to see and it is done in the interests of ensuring that the House is able to deal with the widest category of delegated legislation something that is not as satisfactorily able to be done as it might be in reliance only on the definitions that are contained in the current Regulations (Disallowance) Act and in related Acts. 
 I think it will be very much a matter of having a look at how experience unfolds with the definitions that are set out in clauses 37 38 and 39 before the House can determine whether or not this is the right approach but it was the approach that commended itself on advice to the Regulations Review Committee and it is I think a worthwhile experiment to be getting on with. 
The next important parts of Part 3 are contained in clauses 40 41 and 42. They deal with the procedure that is to be followed when disallowance of an instrument is to occur. Clause 40 sets out the general principle that the House is the master of delegated legislation; that any piece of legislation made under the authority of a statutory instrument or under the prerogative of any other type of subordinate legislation must always be subject to the ultimate control of the House. Clause 40 sets out that principle and clause 41 goes on to describe how disallowance should be able to occur. 
Basically disallowance may be by motion. Then there are the particular provisions in complement to the Standing Orders that govern the Regulations Review Committee’s procedures; the provisions that provide for that committee’s particular ability to exercise oversight of delegated legislation. These are effectively a re-enactment of the provisions of the Regulations (Disallowance) Act. 
The scheme will be well known to a number of members but perhaps not to all members and the effect of the Standing Orders and the convention is this: if somebody makes a complaint to the Regulations Review Committee the committee hears the complaint and a member of the committee determines that the complaint has substance then that member is entitled to come to the House and put a resolution to disallow the particular instrument on to the Order Paper. The Government of the day has 21 sitting days in which to bring on a debate about the disallowance motion. It must do that and if it fails to bring on the debate then the effect of that failure is that the—as it will now be—disallowable instrument will lapse. 
Listeners might think “Well why does that matter? The only consequence of a disallowance motion is that after 21 days there has to be a debate.” Well the scheme of the current Act which this bill continues and which the Standing Orders complement is one of transparency. If there is to use a colloquial expression something fishy about a piece of delegated legislation then a member who has heard the complaint about it can bring that piece of legislation to this House and up to 2 hours of precious sitting time can be taken out of the legislative programme in order for it to be debated—that is if the Government does not as it so often does simply agree to amend the offending piece of delegated legislation through a process of negotiation or agreement which is of course the way that about 90 percent of the Regulations Review Committee’s work is done. 
I think it has been a satisfactory means to exercise oversight of delegated legislation to date. This bill does not extend the mandate of the committee in any way but it would be timely I think at some point for the House to consider whether overseas experiments with substantive review of legislation itself against particular principles of good lawmaking or particular pieces of legislation such as a Bill of Rights might be an appropriate role for a committee. But at the moment we are not in that territory. It is simply a question of the legislation being re-enacted so as to apply only to delegated legislation—as I have said the new term will be “disallowable instrument”. 
The last point that I really want to make in this contribution relates to what Subpart 2 will do over incorporation by reference in instruments. It has been a concern of the Regulations Review Committee for some time that delegated legislation can make reference to extraneous material that is not contained within the four corners of the instrument itself. 
For example the material might be in a treaty or in rules made by an international body that New Zealand has agreed to cede some power to by becoming party to a treaty. Those rules might exist in some place outside New Zealand. They might exist on the internet or they might exist in some other place. The issue of accessibility arises in respect of the particular rules that are made the law of the land but do not appear in writing in any easily accessible spot. 
What Subpart 2 of Part 3 of the Legislation Bill does is try to put some limits on the way in which delegated legislation will be able to incorporate such material by reference. I think the rules are sensible and they will improve the way in which such material does become part of the law of the land. The provisions that are proposed will certainly increase accessibility in ways that the select committee has previously recommended. I certainly commend the subpart to the Committee.